Herrington v. County of Sonoma

• Decision Date: 30 December 1991
• Docket Number: No. C-80-2227-CAL.,C-80-2227-CAL.
• Citation: 790 F. Supp. 909
• Parties: John HERRINGTON, et al., Plaintiffs, v. COUNTY OF SONOMA, Defendant.
• Court: U.S. District Court — Northern District of California

790 F. Supp. 909

John HERRINGTON, et al., Plaintiffs, v. COUNTY OF SONOMA, Defendant.

No. C-80-2227-CAL.

United States District Court, N.D. California.

November 4, 1991.

Amended December 30, 1991.

COPYRIGHT MATERIAL OMITTED

Paul O. Lamphere, Martinez, Cal., Frederik A. Jacobsen, P.C., San Mateo, Cal., for plaintiffs.

Antonio Rossmann, San Francisco, Cal., Michael D. Senneff, Senneff, Bernheim, Emery & Kelly, James P. Botz, County Counsel, Stephen K. Butler, Asst. County Counsel, Santa Rosa, Cal., for defendant.

AMENDED OPINION AND ORDER FOR JUDGMENT

LEGGE, District Judge.

Plaintiffs John and David Herrington brought this action against the County of Sonoma, initially alleging violations of procedural due process, substantive due process, and equal protection under the Fourteenth Amendment, and a taking of property under the Fifth Amendment. The dispute arises from the County's determination that the Herrington's 32-lot subdivision proposal for their property was inconsistent with the County's 1978 General Plan.

During the first trial, plaintiffs abandoned their claim of a taking of property. The jury found liability in favor of plaintiffs and against the County, and awarded $2,500,600 damages to plaintiffs on their Fourteenth Amendment claims under 42 U.S.C. § 1983. The court then entered a stipulated order finding the County's inconsistency determination to be invalid. The validity of the General Plan and the West Sebastopol Specific Plan were not affected by the judgment.

The Ninth Circuit affirmed the finding of liability and the order invalidating the County's inconsistency determination, but it vacated the award of damages. Herrington v. Sonoma County, 834 F.2d 1488, 1503 (9th Cir.1987), amended by, 857 F.2d 567 (9th Cir.1988). The case was remanded for a new trial on the issue of damages.

On remand, the parties waived a jury and a court trial was held. The court has heard and reviewed the evidence.¹ The court has also considered the record, the arguments of counsel, and the applicable authorities. This opinion constitutes the court's finding of facts and conclusions of law as provided in Rule 52(a) of the Federal Rules of Civil Procedure. The facts are found by a measure of a preponderance of the evidence.

I.

The background facts are set forth in the Ninth Circuit's opinion and need not be repeated here. 834 F.2d at 1491-94. However, because several aspects of the Ninth Circuit's opinion directly affect this damages trial, a discussion of those elements is necessary. This court determined, during extensive pretrial hearings after remand, that certain findings from the first trial had been affirmed by the Ninth Circuit and had become the law of the case. In addition, when the parties could not agree on the measure of damages to be used on retrial, this court defined a measure of damages which it believed to be consistent with the Circuit court's decision. Id. at 1503-06.

A.

At the first trial, the Herringtons claimed $810,000 for "lost value" to their property. That figure represented the difference between an estimated value of $1.3 million, assuming the potential to construct 32 lots on the property, and an estimated value of $490,000 assuming no development at all. Those values were derived from the testimony of plaintiffs' expert and of plaintiff David Herrington.

The Ninth Circuit discussed those valuations in its opinion. It held that the $1.3 million figure was too high because approval of a 32-lot subdivision by the County was speculative. 834 F.2d at 1504. The Court also decided that the $490,000 figure was too low, because it was based on a theory of the total deprivation of economic use of the land — a total taking. Id. at 1505. "However, the Herringtons abandoned their taking claim, and cannot now argue that they were left with no economically viable use of their land." Id. Thus, the Ninth Circuit held that the $810,000 lost value figure was overstated. As will be discussed below, one of the Circuit's decisions which is central to this retrial is that the harm to plaintiffs from the County's conduct was a temporary taking of their ability to use or develop the property. Id. at 1505, 1506.

B.

At the retrial, plaintiffs sought to introduce testimony that the value of the property with a 32-lot subdivision potential was substantially more than $1.3 million, and that the value of the property with no development at all was less than $490,000. Plaintiffs seek to argue that the lost value exceeds $810,000.

However, the principle of the law of the case precludes a court from reexamining an issue previously decided by the same court, or a higher appellate court in the same case. Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 833 (9th Cir.1982). This principle is an analogous but less absolute bar to relitigation than res judicata. The law of the case is an equitable doctrine, United States v. Maybusher, 735 F.2d 366, 370 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985), that should not be applied "woodenly" when doing so would be inconsistent with "considerations of substantial justice." United States v. Imperial Irrigation District, 559 F.2d 509, 520 (9th Cir.1977) rev'd in part, vacated in part on other grounds, 447 U.S. 352, 100 S.Ct. 2232, 65 L.Ed.2d 184 (1979). "While the `law of the case' doctrine is not an inexorable command, a decision of a legal issue or issues by an appellate court establishes the `law of the case' and must be followed in all subsequent proceedings in the same case in the trial court ..." White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967) (cited in Moore, 682 F.2d at 834).

In addition, factual issues cannot be retried under the so-called mandate rule, which is broader than the rule of the law of the case. A district court is free to decide anything not foreclosed by the mandate. United States v. State of Louisiana, 669 F.2d 314 (5th Cir.1982). However, a district court may not exceed the directions of the mandate by retrying facts or altering findings. Id. General principles of estoppel also prevent the Herringtons from claiming values that depart from the Ninth Circuit's analysis.

Whether the principles of the law of the case, the mandate rule, or estoppel control this mixed question of law and fact, this court determined before the retrial that $810,000 represented the maximum lost value of the property which plaintiffs could claim resulted from the acts of the County. The Herringtons were nevertheless permitted to present evidence at the retrial that their lost value exceeded $810,000. The court allowed this evidence to be placed in the record, for the reason that if the Court of Appeals later decides that this court's damages limitation or measure of damages is incorrect, there will be a complete record for a final award to plaintiffs without the necessity for yet another retrial.

C.

At the first trial, plaintiffs sought three components of damages: loss of value, loss of profits, and loss of return on those two elements. The jury awarded all elements of damages, for a total exceeding $2.5 million. In reversing that award, the Ninth Circuit noted that the damages "components are excessive or cumulative in at least three respects:

1) the valuation of each component is speculatively based on the assumption that the County could not legally have foreclosed development of approximately 32 units and on the assumption that the only alternative to the Herringtons' 32-lot proposal was no development at all; 2) because the Herringtons retained ownership of their land and because they have obtained invalidation of the inconsistency determination, the damage suffered is largely temporary rather than permanent; and 3) the awards for lost value and lost profits are duplicative.

Id. at 1504. Although the Court proceeded to evaluate the potential measure of damages under these three components, it specifically declined to express an opinion "as to whether any of the three components of damage asserted by the Herringtons are appropriate in this case," holding only "that, for the reasons stated above, these components are excessive and cumulative." Id. at 1506.

The Ninth Circuit anticipated that on remand there would be difficulties in calculating defendant's damages caused by the due process violation. It said that "the trial court may well be at sea in its attempt to fix damages." 834 F.2d at 1506 n. 23. The Court held that the Herringtons' "loss was temporary, not permanent," id. at 1505, and that "we know neither the proper length of the delay nor the `highest and best permissible use.'" Id. at 1506 n. 23. The Court also indicated that the "harm caused by the County's unconstitutional acts derives primarily from delay in the proper consideration of the Herringtons' subdivision application." (emphasis added.) Id. at 1506. The dissenting opinion noted that "the County's rejection of their development plan may have been a final decision about the proposed subdivision, but it was not a final, definitive statement of how the County would apply the general plan to the Herringtons' land." Id. at 1507. This court concludes from the holdings and statements of the Ninth Circuit that the Court has ruled that plaintiffs can recover only damages based on the temporary loss of use of their property.

The opinion suggested that a surrogate measure of damages could be employed by this court as a possible solution to the damages difficulties. Id. at 1506 n. 23. The Circuit suggested that as a surrogate measure of damages, this court might look to "the difference between the value of the property immediately before the County's inconsistency determination and its value immediately after that determination." Id.

On remand, this court held several pretrial hearings to decide the appropriate measure of damages on which evidence would be received. In accord with the Ninth Circuit opinion, this court viewed the Herringtons' loss as temporary...