[00:00:07] Speaker 02:
Thank you and and good morning mark Dillon for plaintiffs and appellants village communities and related entities We thank the court for this time and we'd like to use 15 minutes for opening and reserve five minutes for rebuttal the appeal presents six issues Today we're going to address three of the six issues and stand on our briefing as to the other issues on appeal and

[00:00:33] Speaker 02:
The first issue in summary focuses on the grant of summary judgment on the grounds that plaintiffs failed to provide evidence that the Heisman condition was a demand for money or property under Coons.

[00:00:46] Speaker 02:
Second issue, the grant of summary judgment, sui sponte.

[00:00:51] Speaker 02:
Third issue, the ruling to exclude all West Lilac Road resident testimony in the eliminate motion stage.

[00:01:00] Speaker 02:
Turning to the first issue.

[00:01:02] Speaker 02:
There is no dispute in this record that the county imposed the offsite easement condition and that it applied to all 50 West Lilac Road residents, some of whom opposed the development project, as a pre-project condition.

[00:01:19] Speaker 02:
The only issue is whether our evidence establishes a genuine issue of material fact that the easement condition was a demand for money or property under Coon's

[00:01:31] Speaker 02:
And it was such a demand.

[00:01:32] Speaker 01:
So, Council, Coons talks about where a permit is denied and the condition is never imposed, nothing has been taken, right?

[00:01:45] Speaker 01:
Yes.

[00:01:46] Speaker 01:
Yes, it does.

[00:01:47] Speaker 01:
And it also says that the question of whether, in that circumstance, federal law provides a remedy for a damaged recovery.

[00:01:59] Speaker 01:
The Coons Court said, we're not reaching that, because in Coons, we're dealing with Florida law.

[00:02:05] Speaker 01:
Here, we're dealing only with federal law, right?

[00:02:09] Speaker 02:
We're dealing with the takings clause and

[00:02:14] Speaker 01:
uh... section nineteen eight yes so is there any case in the u.s.

[00:02:20] Speaker 01:
supreme court or any court of appeals which has held that in the circumstance here where the permit is denied and the condition is never imposed

[00:02:31] Speaker 01:
there is a remedy under 1983 for damages.

[00:02:34] Speaker 01:
The question the Supreme Court said it wasn't reaching in Coons.

[00:02:37] Speaker 01:
Is there any case you can point to where the Supreme Court or any court of appeals says yes, in that circumstance, money damages under 1983 are available?

[00:02:49] Speaker 02:
Your Honor, first and foremost, I'm not aware of a case.

[00:02:52] Speaker 02:
Second,

[00:02:54] Speaker 02:
That issue is beyond the issues presented in this report.

[00:02:58] Speaker 01:
Well, that may or may not be, but you're not aware of any case which has said, yes, under 1983, in that circumstance, damages are available.

[00:03:08] Speaker 02:
And I answered, I'm not aware of such a case.

[00:03:11] Speaker 01:
And you are not advancing a Penn Central claim here, right?

[00:03:15] Speaker 01:
No, I'm not.

[00:03:17] Speaker 01:
Your claim is strictly for inverse condemnation.

[00:03:21] Speaker 02:
Our claim is for

[00:03:24] Speaker 02:
violation of the Takings Clause, inverse condemnation, under the unconstitutional conditions doctrine, Nolan, Dolan, Koontz.

[00:03:33] Speaker 01:
Okay, well, in any of those cases, was there ever a factual circumstance like here where the demand of the county

[00:03:47] Speaker 01:
was that your client obtained the easement.

[00:03:51] Speaker 01:
I've looked at the easement document, and it says that the grantee is your client.

[00:03:56] Speaker 01:
So is there any case which says that in a circumstance where the county is demanding that your client obtain a property interest, that that can constitute a Nolan-Dolan type of taking?

[00:04:16] Speaker 02:
Well, this is this case that does that.

[00:04:20] Speaker 01:
Is there any other, is there any case that says Nolan Dolan is triggered when the government entity says you applicant have to acquire some additional real property interest that you hold?

[00:04:36] Speaker 01:
Is there any case that says that that triggers Nolan Dolan?

[00:04:39] Speaker 02:
Koontz does, Your Honor.

[00:04:41] Speaker 01:
Well, I don't see where Koontz says that, but go ahead.

[00:04:44] Speaker 00:
Your position that Koontz is triggered because it was going to cost money to obtain these easements?

[00:04:49] Speaker 00:
Absolutely.

[00:04:49] Speaker 00:
Right.

[00:04:50] Speaker 03:
And that you would, in some cases, that you could have holdouts on the easements, and so it could be quite extortionate.

[00:05:01] Speaker 02:
Extortionists and an impossible well take and what about a veto?

[00:05:05] Speaker 00:
What about a neighbor that just said not in my back to well, so so let me just Judge Ward was asking a question about there could be a holdout So the price could go up and it could be extortionate and I heard you say yes to that, right?

[00:05:16] Speaker 00:
Yes, so But it seems to me as a separate question about whether the condition and this was a precondition to considering the project as I my understanding right, right and

[00:05:26] Speaker 00:
that that there could be a neighborhood just said I don't want seventeen hundred new homes across the street and then at any price unless I'm really misunderstanding this record know that that is exactly right and we have evidence in this record

[00:05:40] Speaker 01:
showing there were many opponents to... How does that trigger a takings clause claim?

[00:05:47] Speaker 01:
The cases that talk about extortionate demands are extortionate demands by the permitting agency for money or a property interest.

[00:05:57] Speaker 01:
Here, the demand was that you acquire for yourself some other interest.

[00:06:03] Speaker 01:
How is that a taking?

[00:06:05] Speaker 02:
First of all, Your Honor, I feel like we're re-arguing Coons.

[00:06:10] Speaker 02:
In Coons, the whole point of the unconstitutional conditions doctrine is that it forbids burdening

[00:06:17] Speaker 02:
Constitution's enumerated rights to the Takings Clause, regardless of whether the government ultimately succeeds in pressuring us to provide these easements.

[00:06:28] Speaker 01:
That's number one.

[00:06:29] Speaker 01:
But it's, but Coons talks about benefits going to the Florida entity.

[00:06:35] Speaker 01:
Here, the permitting agency was demanding that you yourself get some

[00:06:42] Speaker 01:
property interest that goes to you.

[00:06:45] Speaker 01:
And I don't see any case which says that can be a taking.

[00:06:49] Speaker 01:
All right.

[00:06:50] Speaker 00:
Could I ask a follow-up on Judge Bennett's question?

[00:06:52] Speaker 00:
Is it right that the easement was supposed to remain with your client?

[00:06:57] Speaker 02:
Well, Your Honor.

[00:06:58] Speaker 00:
Or is it supposed to be conveyed to the county?

[00:07:00] Speaker 02:
Under our second takings theory, based on the testimony of Fire Chief Deputy Nissen, the plan

[00:07:11] Speaker 02:
was at final map.

[00:07:13] Speaker 02:
The plan was to require us by condition.

[00:07:16] Speaker 02:
to give over those easements.

[00:07:18] Speaker 01:
I don't read that testimony as establishing a triable issue of fact on that.

[00:07:22] Speaker 01:
What I recall is somebody showed him the deed and said, is this a possibility?

[00:07:30] Speaker 01:
And there was an objection based on speculation.

[00:07:32] Speaker 01:
And he said, well, looking at the deed, it allows for that.

[00:07:38] Speaker 01:
But I didn't see anything admissible in the fire chief's testimony that there was ever a demand from the county that this be conveyed to the county.

[00:07:45] Speaker 00:
Let's say you can't establish that, because I had a hard time nailing that down, and I'm not sure it's established.

[00:07:52] Speaker 00:
But let me just ask a follow-up question a different way.

[00:07:57] Speaker 00:
Even if the easement was to be held by your client, and I'm going to assume that for the purposes of this,

[00:08:03] Speaker 00:
the benefit seems to be this is also ticklish right because the county nobody I think is going to contest the need to make sure that the brush is cleared and the fire danger is abated and this is a very reasonable understandable goal but it seems if I'm reading the fire code correctly that the county has the ability to do that now and and and seek reimbursement from those property owners

[00:08:30] Speaker 00:
So the benefit, it seemed to me, I'd like to hear your response, and both maybe lawyers could respond.

[00:08:36] Speaker 00:
I heard the fire chief, I guess I get confused between the fire chief and the fire marshal, but explain that the reason they wanted the easements is because otherwise the county that had the authority to do this anyway would have to go through a different process and there was going to be delay.

[00:08:49] Speaker 02:
That's right.

[00:08:49] Speaker 02:
And the county did benefit by this ask, by this demand for the purchase and securing of these easements.

[00:08:56] Speaker 00:
How did the county benefit if the easements were going to remain with your client?

[00:08:59] Speaker 02:
Because they wouldn't have to go through that

[00:09:04] Speaker 02:
consolidated fire code process and obtain them themselves.

[00:09:07] Speaker 00:
So how would they trigger it though?

[00:09:08] Speaker 00:
How would they trigger it?

[00:09:09] Speaker 02:
So they short circuit that and they demand them from us.

[00:09:12] Speaker 00:
Wait a minute.

[00:09:13] Speaker 00:
So if you can back up.

[00:09:15] Speaker 00:
For me, this is a very critical point.

[00:09:16] Speaker 00:
Yes.

[00:09:17] Speaker 00:
So let's say the easements stay with your client, all right?

[00:09:20] Speaker 00:
Because I agree with Judge Bennett.

[00:09:21] Speaker 00:
I think the record's fuzzy on that point.

[00:09:23] Speaker 00:
And I think the record's very clear.

[00:09:25] Speaker 00:
The fire code allowed the county to do this anyway.

[00:09:28] Speaker 00:
So let's say those easements stayed with your clients.

[00:09:32] Speaker 00:
then if the county decides it's time to clear the brush a year from now, two years from now, they would have the ability under the fire code to do this, but that takes time, and they would do what?

[00:09:43] Speaker 00:
What was contemplated about that the county could use the easements your clients were going to obtain in order to clear the brush?

[00:09:52] Speaker 00:
Would they have to go through any process?

[00:09:54] Speaker 02:
there would be no process they would have to go through under the Consolidated Code because they exacted from us 50 easements that we had to pay for.

[00:10:06] Speaker 01:
And the question of whether they stay with us is- But wait a minute- Council, I don't see that as answering Judge Christen's question.

[00:10:12] Speaker 01:
You say they obtained it.

[00:10:14] Speaker 01:
But I saw nothing in the record where they demanded you obtain an easement for the benefit of the county or any demand that you somehow get the easement and transfer it.

[00:10:26] Speaker 01:
So to Judge Christin's question, how would this easement in your name benefit the county?

[00:10:35] Speaker 02:
The county made it clear in the resolutions and the staff reports that this easement that they

[00:10:42] Speaker 02:
required we purchase and secure would be a safety benefit to the county.

[00:10:48] Speaker 02:
I mean, it's right in the resolution.

[00:10:50] Speaker 03:
No, it's not a safety benefit to the county.

[00:10:51] Speaker 03:
With the county's position, there's no need for the easements unless the development's there, bringing in 1,700 new houses and, you know, it was multi-purpose development.

[00:11:05] Speaker 03:
You don't need the easements because the road was adequate for the existing

[00:11:11] Speaker 03:
property owners to get out in case there was a wildfire.

[00:11:16] Speaker 03:
You only need the easements if you have this set in influx of additional traffic and people and marketing.

[00:11:23] Speaker 03:
And that's your project is the only reason they would need to widen the road so that people could be evacuated in the case of wildfire.

[00:11:33] Speaker 02:
your honor with respect to those issues go to the issues if i was allowed to try this case they would go to the issues of nexus and proportionality well i mean i think you're arguing koon supplies so i'm looking at nexus and proportionality what i'm trying to get at is those are

[00:11:54] Speaker 02:
That's the disconnect that we would show at the time of trial.

[00:11:58] Speaker 02:
There was no nexus, no nexus study, no proportionality, all of which is not in this case.

[00:12:05] Speaker 01:
The damages that you would be seeking, you would ask us to rule that you get to go to trial on, because again, you were not asking in your complaint for any equitable relief.

[00:12:17] Speaker 01:
It was all legal relief, right, damages?

[00:12:20] Speaker 01:
monetary damages, okay, and the damages would be something like If we had gotten the permit Our property would have been worth 50 million dollars without the without the permit our property is was worth a million dollars So because of the county saying we had to get this easement We have 49 million dollars the county has to pay us The difference between what the property would have been worth had it been developed and what it was worth undeveloped

[00:12:49] Speaker 02:
That is our measure of damage in this case, which is beyond the scope of this appeal.

[00:12:59] Speaker 02:
So this appeal is simple.

[00:13:00] Speaker 01:
It's not beyond the scope of the appeal, in my view, because if we ruled in your favor, we would have to rule that the question the Supreme Court left open in Coons, we answer that with, yes, damages are available here.

[00:13:18] Speaker 02:
But Your Honor, I first need to try the case, and we first need to win the case and establish damages.

[00:13:25] Speaker 02:
We're at this stage right now where we're looking at what I call a relatively low bar.

[00:13:31] Speaker 02:
Was there a material issue of disputed fact?

[00:13:35] Speaker 02:
And the evidence is legion on that.

[00:13:37] Speaker 00:
About what?

[00:13:37] Speaker 00:
Hold on.

[00:13:37] Speaker 00:
What's the material dispute of fact that you think should have presented entry of summary judgment, please?

[00:13:43] Speaker 02:
We have shown that the county's demand for the easements, all 50, is a demand first for property because the easements are a property interest.

[00:13:58] Speaker 02:
And second, it is a demand for money because we can't get those easements for free.

[00:14:06] Speaker 02:
And the county expressed its intent

[00:14:09] Speaker 02:
that their intent was for us to purchase and secure those easements.

[00:14:15] Speaker 02:
Sarah Agassi's testimony is clear as a bell.

[00:14:19] Speaker 02:
All 50 easements would be required, and they would have to be purchased.

[00:14:27] Speaker 02:
No objection to that testimony.

[00:14:30] Speaker 02:
It alone is enough.

[00:14:32] Speaker 02:
But then we have the deed of easement.

[00:14:35] Speaker 02:
a county-required document, the one we were supposed to use, which absolutely contemplates on its face that we were going to have to pay consideration in exchange for those easements.

[00:14:47] Speaker 02:
This isn't a close case in terms of genuine issue of material fact.

[00:14:51] Speaker 02:
The evidence is all over the place.

[00:14:54] Speaker 00:
Because the district court ruled that summer judgment was appropriate because there wasn't any evidence that you're going to have to pay anything to obtain the easements, I think.

[00:15:03] Speaker 02:
That's right.

[00:15:05] Speaker 02:
The ward law testimony.

[00:15:07] Speaker 02:
We have more ward law testimony.

[00:15:09] Speaker 02:
No relation.

[00:15:13] Speaker 02:
I know.

[00:15:14] Speaker 02:
We have the ward law testimony.

[00:15:15] Speaker 02:
Purchase and secure.

[00:15:16] Speaker 02:
We have the ward law testimony saying, avoid the subdivision map act by requiring them to get the easements so we don't have to get them if they can't get them.

[00:15:30] Speaker 03:
And aren't you really arguing that they made your

[00:15:35] Speaker 03:
clients development of the property impossible by absolutely we're not going to process even process the application to develop this property unless you get have this impossible demand of obtaining 50 easements it's two-prong it's it's on its face nobody gives away property for free number one and number two

[00:15:59] Speaker 02:
The county knew, and the Slovak testimony establishes, that we had opponents residing along West Lilac Road who opposed the project.

[00:16:13] Speaker 02:
And the likelihood that we'd ever get an easement from them was nil.

[00:16:16] Speaker 02:
So we argued both.

[00:16:18] Speaker 03:
They took your property, or they undercut the Tahoe case.

[00:16:24] Speaker 03:
that undercut the value of your property.

[00:16:26] Speaker 03:
You're not making that argument.

[00:16:28] Speaker 03:
You're just talking about the cost of the easements.

[00:16:31] Speaker 02:
I'm talking about an unconstitutional condition imposed on us for the demand, which was the easement condition, which was a demand for money and property.

[00:16:44] Speaker 01:
And that in your view, as you wrote in your complaint, that this is inverse condemnation, in your view.

[00:16:54] Speaker 02:
Your Honor, it is.

[00:16:55] Speaker 02:
And I've already quoted from the Coons' decision that the fact, under the unconstitutional condition doctrine, that fact alone is the problem.

[00:17:13] Speaker 02:
It burdens the Constitution's enumerated right.

[00:17:17] Speaker 00:
That's all I have to establish.

[00:17:19] Speaker 00:
What's the it in your sentence?

[00:17:21] Speaker 00:
the pre-condition that they obtain the easements.

[00:17:24] Speaker 02:
That's right.

[00:17:25] Speaker 00:
Impermissibly burdened your clients' property rights.

[00:17:29] Speaker 02:
That's right.

[00:17:30] Speaker 00:
I think for two reasons.

[00:17:32] Speaker 00:
One is that it could be that there'll be a holdout and the amount could be extortionate.

[00:17:38] Speaker 00:
And the second is, I think there's nothing preventing those homeowners from refusing to sell at any price.

[00:17:44] Speaker 02:
That's all true.

[00:17:45] Speaker 02:
And the fact that the county made it clear

[00:17:49] Speaker 02:
That this was the easement condition was a demand for money.

[00:17:54] Speaker 02:
It's clear on this record and the and the fact that it wasn't recognized.

[00:18:01] Speaker 00:
I don't money to be paid to the county.

[00:18:03] Speaker 00:
Not money to be paid to the county.

[00:18:05] Speaker 02:
No, we would have to expend the money to acquire it.

[00:18:08] Speaker 01:
And the Kuntz case specifically says, we hold that the government's demand for property from a land use permit applicant must satisfy the requirements of Nolan and Dolan.

[00:18:22] Speaker 01:
There's nothing in Kuntz that says, we hold that the government's demand that the applicant acquire property for itself must satisfy the requirements of Nolan and Dolan, right?

[00:18:35] Speaker 02:
To the extent I understand, the answer is yes.

[00:18:39] Speaker 02:
But if we're going to talk Koontz, let's talk Koontz.

[00:18:42] Speaker 02:
In Koontz, they required that he give his property or that he improve wetlands offsite.

[00:18:52] Speaker 02:
And that's all that they asked for.

[00:18:54] Speaker 02:
Now, the guy didn't go out and improve the wetlands.

[00:18:58] Speaker 02:
He didn't pay money to contractors to improve the wetlands.

[00:19:02] Speaker 02:
He said,

[00:19:03] Speaker 02:
Baloney, I'm not going to accept this condition.

[00:19:08] Speaker 02:
And that was enough.

[00:19:10] Speaker 02:
And the denial of the permit was enough.

[00:19:13] Speaker 02:
And the demand for money was necessarily implied by the demand to improve offsite property.

[00:19:20] Speaker 02:
Just like this.

[00:19:21] Speaker 01:
Who owned the offsite property?

[00:19:23] Speaker 02:
Pardon me?

[00:19:23] Speaker 02:
Who owned it?

[00:19:25] Speaker 02:
Who owned the offsite property?

[00:19:27] Speaker 02:
Yeah.

[00:19:28] Speaker 02:
In Coons?

[00:19:28] Speaker 01:
Yeah.

[00:19:30] Speaker 02:
I don't know.

[00:19:31] Speaker 02:
I just know that it was a third-party property that they wanted improved.

[00:19:36] Speaker 00:
A third-party property as opposed to public property?

[00:19:39] Speaker 02:
I thought it was, well, first, either way, it's off-site.

[00:19:44] Speaker 02:
It's off-site property.

[00:19:45] Speaker 00:
It was off-site property.

[00:19:46] Speaker 00:
Could I ask you this question?

[00:19:47] Speaker 00:
What's the best source in the record?

[00:19:49] Speaker 00:
I'm trying to figure out whether there's a genuine dispute about from which, on this record, a jury could find that the condition

[00:19:57] Speaker 00:
did contemplate that your client would convey those easements to the county.

[00:20:01] Speaker 00:
What's the best evidence of that, sir?

[00:20:05] Speaker 02:
Well, the best evidence is the Nissen testimony that we cited in our briefing.

[00:20:10] Speaker 02:
But that's our secondary takings claim.

[00:20:12] Speaker 02:
Our first takings claim carries the day, as far as I'm concerned.

[00:20:18] Speaker 03:
Thank you.

[00:20:18] Speaker 03:
You wanted to save time.

[00:20:19] Speaker 03:
You didn't.

[00:20:20] Speaker 03:
I'll let you have a few minutes in rebuttal.

[00:20:23] Speaker 02:
Thank you.

[00:20:23] Speaker 03:
Thank you, counsel.

[00:20:36] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:20:38] Speaker 04:
Katie Richardson on behalf of the County of San Diego and the San Diego County Board of Supervisors.

[00:20:43] Speaker 04:
I've listened to the Court's concerns and I'm happy to address them.

[00:20:45] Speaker 04:
I do think it's important just for a moment to step back because there are some procedural elements we need to get to before we get to the substance of the District Court's Sue Espante summary judgment order.

[00:20:57] Speaker 04:
First,

[00:20:58] Speaker 04:
It's the county's position that it would make the most sense to begin the court's analysis with a determination of whether the district courts, of the district courts, April 18, 2023, eliminate order as it operated as the domino, if you will, in the chain of events that's led us here today.

[00:21:15] Speaker 04:
Now, it's the county's position

[00:21:17] Speaker 04:
that plaintiffs have improperly challenged that order for the first time on appeal.

[00:21:21] Speaker 04:
If this court agrees, that order stands.

[00:21:24] Speaker 04:
If the court disagrees, however, and determines that the order is properly reviewable, it must then determine whether the district court abused its discretion in issuing that order.

[00:21:33] Speaker 04:
And because plaintiffs have not demonstrated that the district court was manifestly erroneous in excluding that evidence as irrelevant.

[00:21:40] Speaker 03:
You're talking about the neighbors' testimony?

[00:21:42] Speaker 04:
Yes, Your Honor.

[00:21:43] Speaker 04:
And also that in terms of the sui sponte summary judgment order, there is the notice and opportunity to respond that is also needs to be considered prior to reaching the substance of the first point because I'm not sure it's going to be a great.

[00:22:00] Speaker 00:
I won't focus on it.

[00:22:01] Speaker 00:
I just wanted to note it before.

[00:22:02] Speaker 00:
But the first order said that, I think it was at your request, that there was a motion eliminated that the property owners shouldn't be allowed to speak about what was basically a legal conclusion, their obligation to clear the brush, and whatnot.

[00:22:14] Speaker 00:
And also conversations with plaintiffs and their valuation.

[00:22:17] Speaker 00:
Right.

[00:22:17] Speaker 00:
And so that was granted.

[00:22:18] Speaker 00:
And then there was the follow-on order, excluding the neighbors entirely, right?

[00:22:26] Speaker 04:
I don't agree that it was in any way expansive.

[00:22:29] Speaker 04:
I think that the court was simply reiterating the evidence that it had previously excluded in its eliminate order.

[00:22:35] Speaker 00:
So you don't think the court ever said that the neighbors were going to be excluded in total?

[00:22:39] Speaker 04:
I think that it would have excluded all of the neighbors' testimony that plaintiffs had indicated they intended to offer.

[00:22:48] Speaker 00:
Okay.

[00:22:49] Speaker 04:
I also do want to touch on one of the questions regarding the property at issue in Coons.

[00:22:54] Speaker 04:
That was the water district's property.

[00:22:57] Speaker 04:
So it was government property.

[00:22:58] Speaker 04:
And your honor, Ms.

[00:23:00] Speaker 00:
I think that's right.

[00:23:01] Speaker 00:
I think it was.

[00:23:01] Speaker 00:
But could you back up?

[00:23:02] Speaker 00:
And we're really grappling.

[00:23:04] Speaker 00:
Sure.

[00:23:04] Speaker 00:
All three of us with absolute of the easements and

[00:23:07] Speaker 00:
So I'd like to hear your response about the problem of the holdout property owners.

[00:23:12] Speaker 00:
OK, could be twofold.

[00:23:14] Speaker 00:
But also, is there a dispute in this record about whether the county contemplated that those easements would be remain held by the developer as opposed to being conveyed to the county?

[00:23:26] Speaker 04:
It wasn't decided at the point at which the recommendation went to the board because plaintiffs had said it's infeasible.

[00:23:32] Speaker 04:
We're not going to do it.

[00:23:34] Speaker 04:
And then so the planning committee

[00:23:36] Speaker 04:
made the recommendation to the board and the board formally denied at the point at which uh...

[00:23:43] Speaker 04:
the case resolved before the board, I'm sorry, in this case, the county had not determined what would ultimately happen.

[00:23:53] Speaker 04:
We have the debt.

[00:23:54] Speaker 04:
Sorry to interrupt, but what would ultimately happen?

[00:23:57] Speaker 04:
Who would ultimately own?

[00:23:59] Speaker 04:
Who would ultimately have responsibility for the easements?

[00:24:02] Speaker 04:
The county's concern.

[00:24:04] Speaker 00:
So here's my question.

[00:24:05] Speaker 00:
Is there evidence in this record from which jurors could have decided that the county intended those easements to be conveyed to the county?

[00:24:12] Speaker 04:
I don't believe so, Your Honor, because the specific deed of easement form, pardon me, that plaintiffs rely on expressly states that the easement will be conveyed to plaintiffs.

[00:24:27] Speaker 00:
That's the part we know, that there's indications in the record.

[00:24:31] Speaker 00:
We appreciate that.

[00:24:32] Speaker 00:
We appreciate there's a blank with a dollar sign on it.

[00:24:34] Speaker 00:
And so that's his argument, that it was going to require the payment of money to obtain the easements.

[00:24:40] Speaker 00:
I'm just trying to figure out the much narrower question.

[00:24:43] Speaker 01:
Anything in the record to indicate isn't there indication in the record that those easements were going to be conveyed to the county I don't think that it's clear that it was ultimately term Determined if you look at the county ever make a demand I'm sorry to the county is there anything in the record where the county ever demanded from the developer that When you obtain these easements that were requiring you to obtain that you will need to convey them to the county no your honor and in fact the declaration of

[00:25:12] Speaker 04:
David Nissen states that the county's plan was for plaintiffs to utilize the easements to conduct the initial vegetation management necessary to address the county fires concern and then to assign these.

[00:25:24] Speaker 00:
Did you mean to say only the initial remediation?

[00:25:28] Speaker 04:
Correct, and then I'm continuing on with this.

[00:25:30] Speaker 04:
And then to assign the easements to the project's future community facilities district or fire safe council to maintain the vegetation in perpetuity.

[00:25:38] Speaker 04:
The county is concerned that someone would have a guaranteed legal right and responsibility to enter the property and maintain the vegetation in perpetuity.

[00:25:49] Speaker 00:
But your biggest problem, I think, to be frank, is that the county already has that ability under the fire code.

[00:25:55] Speaker 04:
Your honor, the county has discretionary authority that the fire codes language is that it may enter the property, but there's no assurance that that will be necessarily enforced because the Deer Springs Fire Department is the fire authority having jurisdiction.

[00:26:11] Speaker 04:
Or if the agreement with the county between Deer Springs is terminated, there's no guarantee.

[00:26:17] Speaker 04:
But even beyond that, the bigger concern is that the county, any fire authority having jurisdiction cannot simply go on to private property.

[00:26:25] Speaker 04:
That would be a trespass.

[00:26:26] Speaker 04:
They have to undergo the abatement process, which is time consuming and complicated and could run years out theoretically if a property owner challenged a notice to abate.

[00:26:38] Speaker 04:
And a court ultimately decides, we could be years out again delaying the time in which the county needs to conduct if you want.

[00:26:46] Speaker 03:
I'm just wondering this demand by the county for the developer to get 50 easements for this kind of abatement work.

[00:26:59] Speaker 03:
in advance of the county even processing the application, the permit for the development.

[00:27:08] Speaker 03:
Doesn't that just say that we're essentially just disapproving your project?

[00:27:13] Speaker 03:
No, Your Honor.

[00:27:14] Speaker 03:
It's not going to happen.

[00:27:15] Speaker 04:
I don't think that there's evidence that could create a tribal issue of fact one way or another, because plaintiffs didn't pay me.

[00:27:22] Speaker 03:
I'm talking as a theoretical, logical matter.

[00:27:25] Speaker 03:
There were people who, what particular area of San Diego are we talking about?

[00:27:30] Speaker 04:
So this is an unincorporated area of San Diego where there's a lot of brush.

[00:27:35] Speaker 04:
It's not highly occupied.

[00:27:37] Speaker 03:
Where is it located specifically?

[00:27:39] Speaker 04:
Northern county of San Diego in a rural area of the unincorporated portion of the county of San Diego.

[00:27:47] Speaker 03:
What would be the freeway that

[00:27:49] Speaker 04:
Oh, Your Honor, I'm so sorry.

[00:27:50] Speaker 04:
I actually am recently relocated to San Diego.

[00:27:55] Speaker 03:
I'm more familiar with San Diego than you are.

[00:27:57] Speaker 04:
At this point, I guess you would be.

[00:27:58] Speaker 04:
Yes, I'm so sorry.

[00:27:59] Speaker 04:
So I don't know the freeway to help orient you.

[00:28:02] Speaker 03:
Like if you're going down the 15, going down beyond the, you're talking.

[00:28:06] Speaker 04:
I would say it's certainly closer inland.

[00:28:08] Speaker 04:
Am I right?

[00:28:09] Speaker 02:
The 15 south is on the east side.

[00:28:12] Speaker 03:
East side of the 15.

[00:28:13] Speaker 03:
And what's, do you know the cross highway?

[00:28:16] Speaker 03:
Is it 78?

[00:28:18] Speaker 02:
So right now, it's a very low density area.

[00:28:29] Speaker 04:
There are only approximately 81 residences in the area.

[00:28:33] Speaker 04:
And plaintiffs wanted to increase the allowable density at the project site by nearly 1,600%.

[00:28:40] Speaker 04:
But I did want to touch on Judge Bennett's point.

[00:28:46] Speaker 03:
The developer had been able to get all these easements.

[00:28:50] Speaker 03:
Was the county going to approve the project?

[00:28:53] Speaker 04:
I can't speak to the board of supervisors on that point, Your Honor, but I know that it could have.

[00:28:57] Speaker 00:
But here's the problem.

[00:28:58] Speaker 04:
Yes.

[00:28:59] Speaker 00:
Their argument, which I'd like you to respond to if you can, is that this was a precondition, that they were supposed to go by 50 easements.

[00:29:06] Speaker 00:
I think it's 48 at one place in the record, but whatever, a lot of easements.

[00:29:11] Speaker 00:
And if the project were not approved, they'd be left holding 50 easements.

[00:29:17] Speaker 04:
Your Honor, I think that goes to the concern about Kuntz, Nolan, Dolan, and the unconstitutional conditions doctrine.

[00:29:25] Speaker 04:
What plaintiffs wanted was for the county to approve the project with post-condition approval, so that if plaintiffs then did not obtain the 50 easements, the county would be left in the position of exercising eminent domain or waiving the condition.

[00:29:42] Speaker 04:
which would create the same concern that the Planning Commission was attempting to avoid by requesting the easements in the first place.

[00:29:51] Speaker 04:
And that is perfectly consistent with Nolan, Dolan, and Coontz, all of which confirm that the government may require property owners to pay to mitigate the direct

[00:30:02] Speaker 04:
impacts of any proposed development.

[00:30:04] Speaker 00:
And it's worth repeating that the- It also says that any restriction may constitute a taking if it's not reasonably necessary to effectuate what it seems to me to be an entirely reasonable goal.

[00:30:15] Speaker 00:
Everybody's concerned about fire, right?

[00:30:17] Speaker 00:
Correct.

[00:30:17] Speaker 00:
But I'm trying to figure out why this condition was reasonably necessary given that the county had authority to require the brush to be cleared already.

[00:30:24] Speaker 00:
What's your best answer to that?

[00:30:27] Speaker 04:
Because the options with respect to what the fire code allowed wouldn't ensure that the county fire had a continuous legal means by which to enter the property of these private property owners.

[00:30:42] Speaker 00:
Don't they have that right now?

[00:30:44] Speaker 04:
They don't, Your Honor.

[00:30:45] Speaker 00:
The fire code seems to allow it.

[00:30:46] Speaker 00:
It doesn't allow.

[00:30:48] Speaker 00:
It's an administrative procedure, and the fire chief or fire marshal was frustrated that was going to require a delay.

[00:30:56] Speaker 00:
I appreciate that your position is that the homeowners have this duty and it may be neglectful and this provision hasn't been enforced but I'm trying to figure out what your best argument is that this condition was reasonably necessary and I haven't been shy about saying I'm concerned that it seems as though a holdout could have stopped this whole project.

[00:31:18] Speaker 04:
The concern is simply the delay in time, Your Honor.

[00:31:22] Speaker 04:
I understand that your sticking point is the abatement process, but we would have to, the county would, any fire authority having jurisdiction would have to endure that.

[00:31:32] Speaker 04:
And there are many different layers that would be out of county fires control in determining whether or not ultimately they could enter the property and conduct vegetation.

[00:31:43] Speaker 04:
So at the end of the day, the concern is human life, frankly.

[00:31:46] Speaker 00:
As I said, the ultimate goal and concern is entirely reasonable.

[00:31:51] Speaker 00:
It seems to be on both sides here.

[00:31:53] Speaker 00:
What is the best place where I can find in the record this discussion of the delay and the reason for the delay?

[00:31:59] Speaker 00:
Other than the fire code.

[00:32:00] Speaker 00:
I've read the fire code, and I've read the deposition testimony.

[00:32:03] Speaker 04:
The abatement process?

[00:32:04] Speaker 04:
OK.

[00:32:05] Speaker 04:
Your Honor, I would direct you to the expert report of Fire Chief Mitchum.

[00:32:12] Speaker 04:
That's at volume 16, starting at page 4206, and also his declaration.

[00:32:19] Speaker 04:
And that's at volume 20 of the excerpts of record, beginning at page 5548.

[00:32:24] Speaker 00:
Thank you.

[00:32:25] Speaker 04:
And that goes thoroughly into the concerns that the county had with respect to all of the alternative proposals that plaintiffs offered in lieu of obtaining the easements.

[00:32:37] Speaker 04:
And I also want to emphasize with respect to whether or not this was a taking or an unconstitutional condition, the district court relying on this court's decision in Ballinger versus City of Oakland acknowledged

[00:32:52] Speaker 04:
what Justice Sotomayor's concurrence in the recent unanimous sheets decision reminded us all of and that is in the takings context an important threshold question in the unconstitutional conditions doctrine analysis is whether the permit condition would be a compensable taking

[00:33:10] Speaker 04:
if imposed outside the permitting context, because only then does Nolan Dolan's scrutiny apply.

[00:33:17] Speaker 04:
The answer to that threshold question here is no, because if we set aside the benefit of permit approval and the county had gone on to these West Lilac Road residents and demanded 20-foot easements to conduct fuel modification, that would have been a taking of their property, not plaintiffs,

[00:33:36] Speaker 04:
And plaintiff's contention that the county was simply requiring them to do that which the county would otherwise have to do through eminent domain is simply inaccurate because the county is not obligated or required to engage or apply its eminent domain authority and could have denied plaintiff's application.

[00:33:55] Speaker 04:
All other boxes being tipped simply because it would have required the county.

[00:33:59] Speaker 04:
to exercise eminent domain.

[00:34:01] Speaker 04:
And again, I do want to emphasize the county had no need or want for these easements, but for the direct negative impacts that plaintiff's proposed development posed to the area residents, both existing and future.

[00:34:15] Speaker 00:
Can I ask you about that?

[00:34:16] Speaker 00:
Your briefing takes that position, too, that the county had no need or want.

[00:34:20] Speaker 00:
But it seems like there's an existing need.

[00:34:22] Speaker 00:
And that's why we see these photos of the trees growing over the road, even for the status quo.

[00:34:29] Speaker 04:
There isn't the same degree of need, Your Honor.

[00:34:31] Speaker 04:
Currently, the density of this area is quite low.

[00:34:34] Speaker 00:
That seems to be the problem in the record.

[00:34:37] Speaker 00:
I think it's pretty tough for the county to say there's no need, no benefit, because we have every reason to think that they're legitimately concerned and want to make sure this is safe and reasonable.

[00:34:46] Speaker 00:
But there's an additional load per suit to judge.

[00:34:48] Speaker 00:
Significantly.

[00:34:49] Speaker 00:
Board laws points, 1,700 more homes.

[00:34:52] Speaker 00:
But how is this not a benefit to the county?

[00:34:56] Speaker 04:
How is the property?

[00:34:57] Speaker 04:
The easements.

[00:34:59] Speaker 04:
I'm sure there are benefits to the county whenever we have additional revenue coming into the county, but that cannot be the greatest concern when we have this concern for human life.

[00:35:11] Speaker 01:
I think Judge Christen, maybe I'm wrong, but I think Judge Christen was asking not how money coming in from the development would be a benefit to the county, but how is not clearing the brush a benefit to the county?

[00:35:25] Speaker 04:
Oh, it's not a benefit for a few reasons.

[00:35:28] Speaker 04:
I mean, if there's no need to burden private property, owners property, the county doesn't want to do that.

[00:35:34] Speaker 04:
I mean, and right now, given the low density in this area, it doesn't need to conduct fuel modification as frequently to the same degree.

[00:35:43] Speaker 00:
My understanding.

[00:35:44] Speaker 00:
So that this is helpful.

[00:35:46] Speaker 00:
And Judge Bennett is correct about where my question was.

[00:35:48] Speaker 00:
Thank you.

[00:35:50] Speaker 00:
But my understanding is that the testimony spoke to the fact that it's overgrown now.

[00:35:55] Speaker 00:
The the property owners obligation to keep the brush cut back has been ignored or you know, not very carefully abided by but the city County rather fire officials were taking the position They simply don't have the resources to sort of enforce everything at once not that they thought it was in compliance and not a problem so it seemed to me that the city County forgive me had a pre-existing

[00:36:21] Speaker 00:
concern about clearing that brush.

[00:36:23] Speaker 00:
Do you think I have an incorrect premise?

[00:36:25] Speaker 04:
No, I think it's correct to a point.

[00:36:28] Speaker 04:
As the evidence and the record reflects, the county is large.

[00:36:31] Speaker 04:
There's only so many resources in order to conduct the fuel modification.

[00:36:36] Speaker 04:
And the lower the density in a particular area, it may not

[00:36:39] Speaker 04:
occur as frequently.

[00:36:40] Speaker 04:
But now we're talking about increasing the load by nearly 1600%.

[00:36:44] Speaker 04:
And again, that would require an amendment to the county's general plan because the county's general plan in this particular project site is limited to no more than 110 single-family detached dwelling units and no commercial uses.

[00:36:58] Speaker 04:
So it would need to take place much more frequently and to a greater degree.

[00:37:03] Speaker 04:
The photos show brush along the right of way along the road.

[00:37:07] Speaker 04:
And the county already has easement and authority to clear within the existing right of way.

[00:37:14] Speaker 04:
It was beyond that that county fire in consultation with this independent wildfire risk mitigation firm believed that was necessary.

[00:37:24] Speaker 00:
I have just a related question that I'm going to leave you alone.

[00:37:27] Speaker 00:
My view of the record is that on December 16th the fire marshal Sibbitt emailed and sent an email saying that the proposed project Included significant new mitigation measures and it was sufficient and then two weeks later December 30th the same person emailed the deputy fire chief Nissen and said

[00:37:44] Speaker 00:
that it didn't include enough.

[00:37:45] Speaker 00:
And at his deposition, he was asked about those two emails, conceded yes, one directly contradicts the other.

[00:37:52] Speaker 00:
But I never saw an explanation.

[00:37:54] Speaker 00:
In the deposition, he said he couldn't recall what caused him to change his mind.

[00:37:58] Speaker 04:
I'm sorry, Your Honor.

[00:37:59] Speaker 04:
Are you talking about Mr. Nissen, or Sibbett, David Sibbett?

[00:38:02] Speaker 00:
Fire Marshal Sibbett was the deponent.

[00:38:04] Speaker 00:
He's the author of these two emails.

[00:38:07] Speaker 00:
He was sending them to Nissen.

[00:38:09] Speaker 00:
There's an about face here.

[00:38:11] Speaker 00:
And the response you just gave about the fact that there was this really large increase in load was always true, because it's always been a project of 1,700-some homes.

[00:38:23] Speaker 00:
And yet this is a flip-flop.

[00:38:25] Speaker 00:
I don't mean that disrespectfully, but it is an about face.

[00:38:27] Speaker 00:
And he's acknowledging in his deposition testimony here that it's a direct contradiction, but can't remember why he flipped on that.

[00:38:37] Speaker 00:
And so I am really at a loss to make sense of this record.

[00:38:40] Speaker 00:
Your Honor, I'm not sure what the dates are, but I... December 16th, 2019 and December 30th, 2019.

[00:38:46] Speaker 04:
Your Honor, I'm so sorry, I can't speak to that discrepancy, but I can say that between 2015 when the Planning Commission initially recommended approval and 2020 when it recommended denial, there was the worst wildfires in California's history.

[00:39:03] Speaker 04:
And so now the county fire taking responsibility for this area, which previously had been overseen by the Deer Springs Fire

[00:39:12] Speaker 04:
district had greater concerns.

[00:39:16] Speaker 04:
Throughout California, the California Fire Department was saying we need to be all the more careful because of this risk of entrapment.

[00:39:24] Speaker 04:
And there was a wildfire not far from the project site during that time.

[00:39:28] Speaker 04:
I'm so sorry.

[00:39:29] Speaker 01:
So, counsel, I want to ask the question I asked your friend.

[00:39:32] Speaker 01:
Are you aware of any case since Coons in which any, either the Supreme Court, any federal court of appeals, or for that matter, any federal court has answered the question left open in Coons in a way favorable to your friend, that is,

[00:39:49] Speaker 01:
The permit is denied.

[00:39:50] Speaker 01:
The condition is never imposed.

[00:39:53] Speaker 01:
Nothing is taken.

[00:39:54] Speaker 01:
But we're going to allow damages under 1983 for a diminution in property.

[00:39:59] Speaker 01:
Are you aware of any case which has answered the question left open in Coons?

[00:40:03] Speaker 04:
No, Your Honor.

[00:40:04] Speaker 04:
And I acknowledge that I searched.

[00:40:07] Speaker 04:
And what I would say is that 1983, in order to recover damages, one must establish injury.

[00:40:13] Speaker 04:
And that is what's missing here.

[00:40:14] Speaker 04:
We have no taking.

[00:40:15] Speaker 01:
But they've claimed, though, that the

[00:40:17] Speaker 01:
There's a diminution in property and one can imagine.

[00:40:21] Speaker 01:
I mean, I think this is part of what Justice Kagan's dissent in Kuhn said.

[00:40:26] Speaker 01:
One can imagine thousands of lawsuits every time there's a condition imposed that's never complied with, our property is worth less.

[00:40:35] Speaker 01:
And are you aware of anything that says, yes, you can recover that under 1983 for a diminution because of a supposed Nolan-Dolan condition that was never imposed because it was rejected by the applicant?

[00:40:48] Speaker 04:
No, Your Honor, I am not.

[00:40:49] Speaker 00:
I just have one follow-up question with Judge Wardlaw's permission, because you're over time.

[00:40:55] Speaker 00:
Not a question.

[00:40:56] Speaker 00:
We're the ones who've taken you over time.

[00:40:59] Speaker 00:
That's not why the district court dismissed this.

[00:41:02] Speaker 00:
Correct.

[00:41:03] Speaker 00:
Right.

[00:41:04] Speaker 00:
If that's what we were relying on, and I think Judge Bennett raises a really good point, but I'm trying to figure out why amendment would be futile, because they certainly could have requested and could request injunctive relief.

[00:41:15] Speaker 00:
Could they not?

[00:41:17] Speaker 04:
I suppose it's possible, Your Honors, but we're not there.

[00:41:20] Speaker 04:
They didn't do that.

[00:41:21] Speaker 01:
Sold the property, right?

[00:41:23] Speaker 01:
That's true.

[00:41:23] Speaker 01:
So they don't own it anymore, so there would be no injunctive relief that could benefit these plaintiffs.

[00:41:27] Speaker 04:
That's a good point.

[00:41:28] Speaker 04:
Yes, plaintiffs no longer own the property.

[00:41:30] Speaker 00:
Not like a district court dismissed, right?

[00:41:32] Speaker 04:
That's correct.

[00:41:32] Speaker 03:
OK, thank you.

[00:41:34] Speaker 03:
All right, thank you, counsel.

[00:41:35] Speaker 03:
I will give you two minutes more.

[00:41:43] Speaker 02:
Two minutes?

[00:41:43] Speaker 02:
Thank you.

[00:41:44] Speaker ?:
Your Honor.

[00:41:44] Speaker 02:
Justice Christensen, you asked about testimony requiring by the county to require us to give over those easements.

[00:41:55] Speaker 02:
And I mentioned this, but also the deed of easement document they prepared and required included a successor in a science provision, and it's

[00:42:09] Speaker 02:
As I recall the record, it's the Slovak and Nissan testimony.

[00:42:13] Speaker 02:
When I asked about that assignment provision, they said they would use it as part of the final conditions to get these easements.

[00:42:23] Speaker 02:
So it's clear to me that there is record evidence that this was a not unlike

[00:42:34] Speaker 02:
the Nolan situation.

[00:42:37] Speaker 02:
They set this up so we had to get them but then they planned to get them later when we needed their project approval and they had over us the final conditions and they were going to get these easements through the assignment as part of a condition in the final conditions and that's in effect what Slovik, Mark Slovik

[00:43:00] Speaker 02:
senior guy, project manager, and Deputy Chief Nissen testified to, and that's in the record.

[00:43:06] Speaker 02:
So I wanted to expound on that topic.

[00:43:09] Speaker 02:
Second, there was testimony that

[00:43:17] Speaker 02:
that the county required us to get the easements for the county's benefit.

[00:43:22] Speaker 02:
And the easement document itself in the recital says that they're necessary for public safety.

[00:43:30] Speaker 02:
So there is county benefit here.

[00:43:34] Speaker 02:
And we would have no need

[00:43:38] Speaker 02:
to spend upwards to $2.5 million acquiring these easements, then to have the project denied, we're now sitting with 50 useless easements that we paid $2.5 million for.

[00:43:52] Speaker 00:
You mean you would be.

[00:43:53] Speaker 00:
You didn't buy any of them, right?

[00:43:54] Speaker 00:
No, we did not.

[00:43:55] Speaker 02:
You would be is what you mean.

[00:43:56] Speaker 02:
That's right.

[00:43:57] Speaker 02:
And again, it's important that we're not being held to the standard.

[00:44:03] Speaker 02:
This record is riddled with prerequisites to our

[00:44:08] Speaker 02:
uh... to the easement condition.

[00:44:11] Speaker 02:
Oh, we didn't get a single easement.

[00:44:13] Speaker 02:
It doesn't matter if we didn't get a single easement.

[00:44:16] Speaker 00:
Well, it might matter that you're not eligible for damages.

[00:44:18] Speaker 00:
What's your best answer to that point that Judge Bennett made?

[00:44:22] Speaker 02:
Well, my best answer is I'm not here today on that issue.

[00:44:26] Speaker 02:
That's my best evidence.

[00:44:28] Speaker 02:
My best response.

[00:44:30] Speaker 02:
And that's for another day.

[00:44:32] Speaker 02:
And I do believe that under

[00:44:35] Speaker 02:
under 1983, we're entitled to damages.

[00:44:38] Speaker 02:
That I don't have a case that says, yes, that's right, under 1983, you're entitled to damages is of no moment, particularly in this appeal.

[00:44:48] Speaker 02:
Now, you know, ultimately, if we reverse because there is

[00:44:55] Speaker 02:
overwhelming evidence that the easement condition was a demand for both property and money, we may get to that issue.

[00:45:03] Speaker 02:
We may.

[00:45:04] Speaker 02:
And I don't know how that's going to come out.

[00:45:07] Speaker 02:
I don't.

[00:45:08] Speaker 02:
But I do have a statutory basis for it.

[00:45:12] Speaker 02:
And I don't need to have secured the easements for it.

[00:45:17] Speaker 02:
Under Coons,

[00:45:19] Speaker 02:
The denial of the permit is enough.

[00:45:22] Speaker 02:
Under Coons, it's the pressure to get to acquire the easements that's enough.

[00:45:27] Speaker 02:
I don't need to show necessarily these damages, although we will through that measure of damage we discussed.

[00:45:36] Speaker 02:
All I need to show is you've burdened my constitutional right against taking.

[00:45:41] Speaker 02:
So that's for another day, that topic.

[00:45:48] Speaker 02:
Lastly, on the Eliminy, I would just ask the Eliminy argument, I would just ask the court to compare the three orders, the amended April 18 order, the other April 18 order.

[00:46:03] Speaker 03:
I think you're right that there was an error there.

[00:46:07] Speaker 03:
But why isn't it harmless?

[00:46:10] Speaker 02:
Because, Your Honor, it was used

[00:46:13] Speaker 02:
The court then took that ruling and used it dispositively to assist it in saying we didn't have enough evidence.

[00:46:22] Speaker 00:
That the easements would cost money.

[00:46:25] Speaker 02:
That's right.

[00:46:26] Speaker 02:
And those declarations are the testimony I was going to use when I put the witnesses in the box.

[00:46:35] Speaker 02:
That's the line of inquiry I wanted to have.

[00:46:40] Speaker 02:
That's the line of inquiry I did based on interviews.

[00:46:44] Speaker 02:
The county never deposed these people.

[00:46:46] Speaker 02:
They brought this blanket motion to exclude all testimony that they didn't even know they were going to testify about.

[00:46:54] Speaker 02:
And then they concoct these arguments about legal obligations and appraisals.

[00:47:01] Speaker 02:
I had no intention of going there.

[00:47:02] Speaker 00:
Did you oppose that part of the motion?

[00:47:05] Speaker 02:
We did see my declarations in the post-judgment motion.

[00:47:09] Speaker 02:
I called the order oblique.

[00:47:12] Speaker 02:
I offered up the offer of proof.

[00:47:16] Speaker 00:
I was trying to ask whether you opposed the notion the county took that the neighbors weren't qualified to give legal opinions about their obligation to clear the brush.

[00:47:28] Speaker 02:
I didn't agree with it, but I didn't oppose it because I had no intention of ever asking it.

[00:47:33] Speaker 03:
All right.

[00:47:34] Speaker 03:
Thank you, Council.

[00:47:37] Speaker 02:
Thank you, Your Honors.

[00:47:38] Speaker 02:
I appreciate all the time and the questioning.

[00:47:42] Speaker 02:
Thanks.

[00:47:44] Speaker 03:
Thank you.

[00:47:47] Speaker 03:
The village communities versus the County of San Diego will be submitted.