Shaw v. County of Santa Cruz

• Citation: 170 Cal.App.4th 229,88 Cal. Rptr. 3d 186
• Decision Date: 19 December 2008
• Docket Number: No. H031108.,H031108.
• Court: California Court of Appeals
• Parties: MICHAEL SHAW et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CRUZ et al., Defendants and Respondents.

170 Cal.App.4th 229

88 Cal. Rptr. 3d 186

MICHAEL SHAW et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CRUZ et al., Defendants and Respondents.

No. H031108.

Court of Appeals of California, Sixth District.

December 19, 2008.

[170 Cal.App.4th 235]

The Zumbrun Law Firm, Ronald A. Zumbrun, Timothy V. Kassouni, Angela C. Thompson and Todd M. Ratshin for Plaintiffs and Appellants.

Dana McRae, County Counsel, and Jason M. Heath, Assistant County Counsel, for Defendants and Respondents.

[170 Cal.App.4th 236]

OPINION

DUFFY, J.

Michael Shaw, his wife, Joanne Shaw, and their business, JN and MC Shaw Management Corp., doing business as JM Management Company,¹ appeal from the trial court's adverse judgment after a bifurcated bench trial on liability issues relating to their claims against the County of Santa Cruz and two of its employees for inverse condemnation, negligence, trespass, and nuisance.² The judgment also dismissed with prejudice the Shaws' remaining claims that were never tried, some of which concerned asserted civil rights and constitutional violations. All the Shaws' claims related to their undeveloped 74-acre parcel³ of real property located in La Selva Beach that they call "Liberty Garden" (the property) as an expression of their belief that "individual liberty and ecological health are inseparable."

The Shaws acquired the undeveloped property in 1985. It had been used for various purposes by previous owners, including cattle grazing. When the Shaws acquired it, the property's vegetation was unmanaged and in places, the terrain was largely covered in weeds, poison oak, and other uncontrolled plantlife. Since 1985, the Shaws have expended much effort and funds to successfully restore the property's native plantlife and seed bank.

In 2000, the Shaws applied to the County for a ministerial "Level 1" permit to connect 400 amperes (amps) of electrical power to the property, principally to power a new well that they had constructed under a separate permit to do so. In 2001, the County, through its planning department, denied the application to set the electrical meter based assertedly on its construction of a local zoning ordinance that precluded issuance of a ministerial permit because the property lacked structures. The policy behind the ordinance was to avoid electricity being used to make unpermitted or illegal structures habitable.

After unsuccessfully taking the matter through an administrative hearing, the Shaws sued the County in 2001. They raised numerous constitutional violations of their property rights, including a temporary taking without just compensation, and violations of their federal substantive and procedural due process rights. In the same action, they petitioned for a writ of mandate seeking an order directing the County to grant them a ministerial permit to connect power to their well. They also sued in tort, alleging claims of trespass, nuisance, and negligence, based on their allegations that the county had caused the spread of foreign weeds on the property by dumping street sweepings on a dead-end county road located next to it.

In 2004, the trial court rejected the County's basis for denying the Shaws the electrical permit they had sought and granted them relief in mandate. The County then issued the permit and the Shaws connected power to their well, which had been powered in the interim by a generator.

The balance of the Shaws' claims were set for trial some two years later, just before expiration of the mandatory five-year statute within which cases must be tried under Code of Civil Procedure section 583.310.⁴ At trial, the court granted the County's motion in limine to bifurcate the issue of liability in inverse condemnation—the Shaws' state takings claim. After the bifurcated bench trial had begun and upon the stipulation of the parties, the court also concurrently tried liability issues in connection with the Shaws' three common law tort claims.

After trial, the court issued what it called a "MEMORANDUM OF DECISION" in the County's favor on the bifurcated issues. No one requested a statement of decision. The memorandum decision requested the County to prepare a form of judgment. The County complied with this directive, submitting to the Shaws' counsel a proposed judgment that incorporated factual findings from the memorandum decision, gave judgment to the County, and dismissed the Shaws' entire complaint, including the claims that remained to be tried, with prejudice. The Shaws' counsel did not sign the form of judgment for his approval as to its form but neither did he indicate any objection to it when given the opportunity. Nor did the Shaws request that the constitutional and other claims remaining, as to which they had up to that point preserved a right to a jury trial, be tried rather than dismissed. The court was later apprised that the Shaws' counsel had no objection to the form of the judgment, which the court then signed and entered. The Shaws did not thereafter bring to the court's attention that they wished a trial on any of their remaining claims. Nor did they make any posttrial motions, including any request that the court vacate the dismissal of their constitutional-violation claims that were never tried or dispositively ruled on by the court, instead only having been dismissed with prejudice by entry of the judgment.

The Shaws now appeal from the judgment, challenging the court's disposition of their claims for inverse condemnation, nuisance, and trespass. They also contend that the court erred by excluding evidence during the course of the bifurcated trial. They further claim that the court erroneously disposed of their federal claims for violation of civil rights and due process on the basis that the claims were not ripe.

We find no error arising from the bifurcated trial and conclude that the judgment in favor of the County on the tried claims is legally correct and supported by substantial evidence. We also conclude that the court made no dispositive ruling on the merits with respect to the Shaws' civil rights and related due-process-violation claims and further that the Shaws acquiesced in the court's ultimate dismissal of these claims with prejudice by failing to request that these claims be tried after the bifurcated portion of the trial had concluded or otherwise objecting to the dismissal of the claims in the judgment or seeking to vacate that dismissal below. They have consequently forfeited asserted errors with respect to these claims on appeal. We accordingly affirm the judgment.

STATEMENT OF THE CASE

I. Factual Background⁵

A. The Property

The Shaws acquired the property in 1985. At that time, portions of it were inaccessible as they were filled with poison oak, stands of old oak trees, and unmanaged non-native vegetation. Although they have never submitted a residential-development application, the Shaws' ultimate goal for the property is to "create [a] landscape that can be supported by citizens who would occupy" the property "so that it can be continually improved and maintained" in perpetuity by "the consolidated effort of a community that would take up residence on the landscape."

The County contends that the property is located in the coastal zone.⁶ It further contends that the property is designated rural residential (R-R) in the general plan and is zoned both residential agricultural (R-A) and agricultural (A) under the local zoning ordinance. The Shaws, for their part, contend that the property is zoned only for rural residential use and that any other zoning designation is inconsistent with the general plan. But they have never formally challenged the County's zoning designations of the property. The Shaws acknowledge that they have never engaged in any agricultural use of the property.

The Shaws live in La Selva Beach, approximately one mile from the property. In addition to their native-plant restoration efforts as described below, the Shaws use the property to grow some edible plants and herbs that they consume and they also have transplanted some native plantlife from the property to their home garden.

B. 1985 Minor Land Division Application

In November 1985, while their purchase of the property was still in escrow, the Shaws applied for a minor land division to subdivide the property into four parcels. They planned to build their home on one of the subdivided parcels. The County denied their subdivision application without prejudice in writing in February 1988 for the asserted reason that the Shaws had failed to submit sufficient information to fully process the application, including a required geological report⁷ and the identification of four building sites suitable for septic tank installation. The written denial also referenced the County's various designations affecting the property, including the "scenic corridor requirements, road access requirements, riparian corridor determinations, density calculations, agricultural buffer requirements, septic requirements and building envelope restrictions." The Shaws did not appeal or otherwise challenge the 1988 denial based on their perception of unfavorable political and economic factors.

C. The Shaws' Restoration Efforts

Shortly after acquiring the property in 1985, Michael Shaw and hired crews began the long-term, arduous, and expensive process of managing its vegetation and hydrology, eradicating weeds and poison oak, and successfully restoring the property's native plantlife and seed bank, mostly by hand. They also constructed road improvements, for which the County issued them a permit to install a culvert.

Over the course of time, the Shaws' extensive work succeeded in removing both "exotic" (i.e., nonnative) plants and weeds and "aggressive native species" from the property that if left alone, "would become monocultures." In addition to the road improvements, they made other drainage improvements to increase waterflow in a creek running on the...