Karen Crane-mcnab LLC v. County Of Merced, CASE NO. CV F 08-1218 LJO SMS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtLawrence J. O'Neill
Docket NumberCASE NO. CV F 08-1218 LJO SMS
PartiesKAREN CRANE-McNAB, LLC, et al., Plaintiffs, v. COUNTY OF MERCED, Defendant.
Decision Date18 November 2010

KAREN CRANE-McNAB, LLC, et al., Plaintiffs,



DATED: November 18, 2010


Motions in Limine

Filing Deadline: November 24, 2010

Motions in Limine

Response Deadline: December 14, 2010

Motions in Limine

Hearing: At time of trial due to reassignment to U.S. District Judge William B. Shubb

This Court conducted a November 15, 2010 pretrial conference. Plaintiffs Karen Crane-McNab, LLC, Bert Crane Orchards, L.P., Mary Crane Couchman Trust, and Mary Crane Couchman Family Partnership, L.P. (collectively "Plaintiffs") appeared by counsel Thomas Campagne. Defendant County of Merced ("County" or "Defendant")) appeared by counsel Roger Matzkind. Pursuant to F.R.Civ.P.

Page 2

16(e), the Court issues this final pretrial order.

A. Jurisdiction and Venue

The parties agree that this Court has original jurisdiction over the parties' disputes pursuant to 28 U.S.C. § 1331 over Plaintiffs' claims arising under the federal constitution, and pendant and supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiffs' remaining claims.

The parties agree that venue is proper in this Court pursuant to 28 U.S.C. § 1391 based on the fact that all parties reside in this judicial district, as that term is used in § 1391, and a substantial part of the events or omissions giving rise to the claims occurred within this judicial district.

B. Court Trial

Based on the parties' stipulation at the pretrial conference, this is a court trial.

C. Estimated Length of Trial

The parties estimate trial will be seven days.

D. Reassignment to U.S. District Judge William B. Shubb and Trial Date

Due to numerous trial conflicts on the calendar of United States District Judge Lawrence J. O'Neill, trial and all further matters are reassigned to United States District Judge William B. Shubb. Trial will be January 24, 2010 at 8:30 a.m. in Department 6 (WBS) of this Court before United States District Judge William B. Shubb.

E. Nature Of Action

Plaintiffs' Recitation of Procedural History

Plaintiffs initiated this action on June 26, 2008, in the State of California, County of Merced Superior Court. The County removed the action to this District Court based on this Court's original jurisdiction (28 U.S.C. § 1331) over Plaintiffs' claims arising under the federal constitution, and pendant and supplemental jurisdiction (28 U.S.C. § 1367) over Plaintiffs' remaining claims. Plaintiffs are proceeding on their Third Amended Complaint ("TAC"), as amended by this Court's Order on Defendant's Partial Motion to Dismiss the TAC (Doc. 53), and this Court's Order on Defendant's Summary Judgment Motion (Doc. 153). In response to the County's summary judgment motion, and in light of information revealed in discovery, Plaintiffs voluntarily dismissed their Fourth Cause of Action for "Fraud and Deceit by Concealment and Suppression of Fact," and Ninth Cause of Action for

Page 3

"Violation of Due Process Clause of the California Constitution, Art. 1, sec. 7." This Court's Order on the summary judgment motion accordingly dismissed those two claims. Furthermore, the Court granted the summary judgment for the County on Plaintiff's Eighth Cause of Action for "Strict Liability." Thus, Plaintiffs are now proceeding on the following seven causes of action:

1. Inverse Condemnation under U.S. Constitution, Fifth Amendment and California Constitution, Art. 1, sec. 19;

2. Trespass;

3. Nuisance;

4. Negligence;

5. Negligence-Failure to Warn;

6. Violation of Due Process Clause of the Fourteenth Amendment, U.S. Constitution and 42 U.S.C. § 1983; and,

7. Declaratory Relief.

On April 3, 2009, the County filed its Answer to Plaintiffs' TAC, denying the majority of the allegations contained therein, and setting forth sixteen Affirmative Defenses styled as:

1. Failure to state a sufficient cause of action;

2. County's acts or omissions were the result of exercise of discretion vested in it, or its agents and employees;

3. The acts complained of were the acts or omissions of others, not the County;

4. County acted win accordance with the California and federal constitutions, and its agents and employees acted within the scope of their employment;

5. County acted in good faith and with a reasonable belief that is actions were lawful, and did not directly or indirectly breach a duty owed to Plaintiffs;

6. County is immune pursuant to Government Code §§ 815, 815.2, 815.6, 818, 820.2, 820.4, 820.6, 820.9, 821.6, 830.6, 835, 844.6, and 845.6;

7. Facts alleged in the TAC do not involve any custom, practice, procedure or regulation of County which caused a violation of a constitutional right, pursuant to Monell v. New York Dept. of Social Services (1978) 436 U.S. 658;

Page 4

8. Plaintiffs' claims barred by the statute of limitations;

9. Plaintiffs' Failure to mitigate damages;

10. Plaintiffs' Failure to comply with Government Torts Act, Gov. Code § 900 et seq.;

11. First, Seventh, and Ninth Causes of Action do not support any constitutional tort;

12. Seventh Cause of Action is barred as occurring more than two years prior to the date of filing this action;

13. Claims are barred to the extent they rely on Merced County Resolutions 2007-57 and 2008-112, pursuant to Case Document 28;

14. "Discretionary act immunity" regarding standards "determined to apply and contain landfill operations regarding solid waste, recycling and odor control and containment";

15. Individual defendants are barred from pursuing any cause of action based on failure to file claim pursuant to the Government Tort Claims Act with respect to the Second, Third, Fourth, Fifth, Sixth, Eighth and Ninth Causes of Action; and

16. "Qualified immunity" in connection with the Seventh Cause of Action for violation of 42 U.S.C. § 1983.

Plaintiffs' Summary Of Allegations

The Plaintiffs own agricultural property located within one-half mile of the County's Highway 59 Landfill. The Landfill consists of approximately 609 acres and is comprised of four (4) unlined waste containment unites of known as Units 1 through 4, one lined area known as Unit 5, a leachate retention pond, and three storm water retention ponds. The facility is approximately six (6) miles north of the City of Merced and receives over 550 tons of solid waste per day. Plaintiffs' property borders the Landfill (separated only by Highway 59).

The properties owned by Plaintiffs in the area relevant to this action are more particularly described as follows:

Highway 59 Landfill Area:

1. Lot 1, APN: 052-150-013

2. Lot 2, APN: 052-150-012

3. Lot 3, APN: 052-150-010

Page 5

4. Lot 17, APN: 052-150-009

5. Lot 18, APN: 052-150-011

6. Lot 59, APN: 052-070-013

7. Lot 60, APN: 052-070-011

Edendale and Canal Creek Waterway Areas:

1. Lot 23, APN 052-080-008

2. Lot 24, APN 052-080-007

3. Lot 25, APN 052-080-006

4. Lot 26, APN 052-080-015

5. Lot 27, APN 052-080-014

6. Lot 28, APN 052-080-013

7. Lot 29, APN 052-080-012

8. Lot 30, APN 052-050-030

9. Lot 30, APN 052-080-011

10. Lot 31, APN 052-080-009

11. Lot 39, APN 052-040-080

12. Lot 39, APN 052-090-036

13. Lot 40, APN 052-040-084

14. Lot 40, APN 052-090-037

15. Lot 43, APN 052-040-078

16. Lot 44, APN 052-050-031

17. Lot 44, APN 052-040-079

18. Lot 48, APN 052-050-026

19. Lot 47, APN 052-050-027

20. Lot 47, APN 052-080-016

21. Lot 48, APN 052-050-026

22. Lot 49, APN 052-050-025

23. Lot 50, APN 052-050-032

Page 6

24. Lot 51, APN 052-050-024

25. Lot 52, APN 052-050-023

26. Lot 53, APN 052-050-022

27. Lot 55, APN 052-050-021

28. Lot 56, APN 052-050-033

29. Lot 56, APN 052-080-019

30. Lot 57, APN 052-080-020

31. Lot 57, APN 052-050-034

32. Lot 58, APN 052-060-015

33. Lot 58, APN 052-080-021

34. Lot 58, APN 052-070-012

35. Lot 58, APN 052-050-035

Plaintiffs do not own the lots collectively or jointly. Rather, each lot is owned wholly by one Plaintiff....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT