MICHAEL SHAW et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CRUZ et al., Defendants and Respondents, 170 Cal. App. 4th 229

Opinion DUFFY, J. Michael Shaw, his wife, Joanne Shaw, and their business, JN and MC Shaw Management Corp., doing business as JM Management Company, 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. 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 parcel 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. 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 Background 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 nonnative 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. 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 report 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 property and to address other “hydrologic problems” that had promoted water runoff and had decreased the property’s water absorption. These changes resulted in a much improved water table able to nourish the native plant growth.

The Shaws’ efforts led to the “releas[e of] the [existing] native local seedbank,” results that, even by 1996, had been described as “dramatic.” By 2002, Michael Shaw characterized in a journal

article their success in the management and restoration of native plantlife on the property as “immediately obvious.” The

article also stated that Shaw “eventually planfned to] develop the property as a nature retreat where people from around the world can experience the potential of wild California ecosystems or as a prototype wildlands/housing community.” As acknowledged by Michael Shaw, the County at no time interfered with the Shaws’ efforts to clear the property of weeds and nonnative plants as part of their restoration efforts.

Nor do the Shaws claim that the County interfered with their native-plant restoration efforts, other than their specifically pleaded claims that the County’s denial of the electrical permit to power the well and its placement of street sweepings next to the property had this effect. D. The Street Sweepings In or around 1992, the Shaws began to engage with the county over the county’s practice of temporarily dumping street sweepings on a dead-end county road abutting the property pending transport of the sweepings to the dump.

The Shaws contended that the dumped material contained foreign grasses and weeds that would migrate onto the property, primarily via a culvert, where the Shaws were attempting to eradicate such growth as part of their restoration efforts. Michael Shaw engaged in correspondence with the county in which he repeatedly requested the county cease its dumping practice and the county outlined its reasons for choosing this location (cost and efficiency) and its efforts, such as installation of a filter trap in the culvert, to prevent migration of matter contained in the sweepings onto the property.

The Shaws contended these efforts were unsuccessful. In its correspondence, the county also noted other ways that undesirable vegetation could migrate onto the property, such as from vehicles loaded with debris driving to the nearby landfill on Highway l. The county continued this dumping practice for some period of time but stopped in 2003. E. The Well In 1995, the Shaws applied for a permit to drill a well on the property. The permit was approved by the county’s environmental health services agency in February 1996 and it called for a final site inspection in December 1999.

In 1997 or 1998, the Shaws proceeded to construct and drill the large— approximately 12 feet in diameter — well under the permit at a cost of approximately $100,000. The well permit was “signed off’ by the county in 1999. That same year, the Shaws contracted with PG&E (Pacific Gas and Electric Company) to bring electrical service to the property, initially to power the well. But the Shaws wanted enough amperage to service not only the well but the property’s entire 74 acres.

They requested PG&E “bring enough [power] to satisfy the region” so as to avoid having to “dig up the road twice” to accommodate their later, unspecified power needs.

In this regard, Michael Shaw did not request a particular level of amperage but told PG&E to “imagine 75 acres put to an economic use by somebody some day. . . . [L]ook at the surrounding neighborhood and the density of development and satisfy any potential need for electricity so we don’t have to dig the road twice.” Although he did not refer to any specific development plans, he relayed to PG&E that “the property was zoned for up to 30 houses and that clearly it’s a piece of property that the public would enjoy using, whether it be for housing or for retreat use . ...” At a cost of approximately $50,000 to the Shaws, PG&E provided the infrastructure and facilities to service the property with 400 amps of electrical power, a level of amperage that PG&E determined based apparently on what Michael Shaw had indicated concerning possible future uses of the property.

On October 23, 2000, the Shaws applied to the county planning department for a ministerial Level I permit to connect electrical power to the property in order to power the well. Their application said that they sought to “[i]nstall a pump and 400 amp electrical service for a well. To be used for irrigation [and] to restore native plants.

No structures on site.” The Shaws, through Michelle Michael, their representative who personally submitted the permit application at the planning department counter, also orally informed that agency that the purpose of the well was “irrigation” and “fire protection.” The county employee who received the application informed Michelle Michael that the department could not “approve a permit [over the counter] because there was [no] dwelling, it was for landscaping” and that the department would need a copy of the well permit to go to the next step.

Michelle Michael then obtained a copy of that permit from the county’s environmental health department, which had issued it. On her second visit to that department, on November 18, 2000, Michelle Michael met with a county employee there who “was very friendly and signed off the application without any questions, but [who] did state that zoning may still make [the Shaws] jump through some hoops.” Michelle Michael then went “to zoning,” where an employee said that the Shaws “could not have power to the parcel without a single-family dwelling” on it.

The employee also said that “sometimes Environmental Health issues permits without consulting the [planning or zoning] department.” The employee suggested to Michelle Michael that she talk to Glenda Hill, the “head of the department.” Michelle Michael left a note for Hill and, not having heard from her in the next several weeks, she began to leave telephone messages asking Hill to return the calls. When the calls were not returned, Michelle Michael turned the matter over to her husband, Dave Michael, for followup.

Dave Michael began calling Hill around December 2000 and he left four to six messages but received no return phone calls. Because of this lack of response, Dave Michael personally went to meet with Hill, whom he had previously known to be extremely helpful, in an attempt to understand why the Shaws were being denied a permit to set the electrical meter, through which they could power the well. At the meeting, Hill reviewed the county ordinances that she thought were applicable to preclude the issuance of a Level I ministerial permit to connect electrical power to the property.

She repeatedly asked for more information about the purposes of the application, what was going on with the property, and what exactly was being proposed. Dave Michael told her that “it was none of [her] business.” Hill told Dave Michael that under local ordinances and without a residence on the property, the Shaws would not be able to get a ministerial Level I permit to set the electrical meter but that they could apply for a “Level V” permit, which required a public hearing and the exercise of discretion by an approving body.

She explained the rationale and policy behind the ordinances, which was the County’s historical concern that providing electrical service to vacant land in some cases had led to the construction of illegal dwelling units and the use of power designated for a well to provide electrical service and water to the illegal units. She also described the procedure through which the Shaws could request an administrative hearing if they chose to pursue the Level I permit application further. And she informed Dave Michael that the Shaws could use a generator to power the well without the need for County approval.

After reviewing the ordinances cited by Hill, Dave Michael expressed to her his belief that they did not apply to the Shaws’ situation. Hill had previously reviewed and denied many applications for electrical hookups for wells on vacant residentially zoned land for the same reasons. And she had considered the Shaws’ application unusual from the start in that it had requested electrical service of 400 amps, whereas the typical amperage for a well hookup is 60 amps.

She had never seen a request for such a large amperage for a well and she questioned the need for that level of power on an apparently vacant piece of property, leading to her inquiries about what was being proposed. In this vein, she did not “completely understand the purpose for the application,” which she reviewed in combination with the county’s residential use chart “to see[,] as best [she] understood the application^] whether there was a use listed in the Use Chart that would allow [her] to approve” it.

She was not able to find a use in the chart that she thought would allow her to issue the Level I permit based on the information that she had and her understanding about the proposed use. Some months later, in May 2001, Hill received a telephone call inquiring as to the status of the Shaws’ application. She was embarrassed to discover that although she had earlier made notes in her computer about the denial of the application, she had never formally notified the Shaws of this decision.

On May 17, 2001, the planning department, through Hill, formally denied the application in writing for the given reason that based on Santa Cruz County Code

section 13.10.611, subdivision (c)2, a Level I permit was not the proper permit level for an electrical hookup on vacant property lacking a main structure or an agricultural use and that without any structures on the property, or an agricultural use, the Shaws would need to apply for a Level V permit. The denial also noted that no justification for 400 amps service had been submitted and that the Shaws could revise the proposal, apply for a Level V permit, or appeal the adverse determination.

Hill made her decision to deny the permit by relying on three factors: (1) her concern about the requested amperage and the need for it based on the asserted use of the vacant property; (2) that the request was not in conformance with an internal department policy memo on the approval of ministerial Level I electrical permits for wells; and

(3) Santa Cruz County Code

section 13.10.611, subdivision (c)2. In other words, there was one undisclosed reason — the policy memo — in addition to the two stated reasons in the written denial. But Hill did not make her decision for purposes of delaying the Shaws’ goals for the property, or for any reason related to the Shaws or their land management practices. The planning director, defendant Alvin James, sustained Hill’s decision following an administrative hearing, which the Shaws had requested and videotaped, on the basis of Santa Cruz County Code

section 13.10.611, subdivision (c)2. Dave Michael and Hill were present at the hearing but not the Shaws themselves. Dave Michael was given a Ml opportunity to advocate the Shaws’ position. But he thought the County had treated the Shaws’ application differently from the 16 to 20 other Santa Cruz County permit applications he had previously been involved with. Still, none of those other applications had dealt precisely with the question of an applicant’s right to a Level I permit to power a well on property lacking a main or accessory structure.

After the permit denial, the Shaws purchased and used generators as a source of power on the property, successMly powering the well and continuing their native-plant restoration efforts. F. Other Development Issues In 2003, the Shaws hired an architect to design what they called an “activity center” for the property, which was intended to be a common area for the residential community that they ultimately planned to develop.

At Michael Shaw’s request, the architect communicated with the county planning department about the feasibility of the plans for the activity center and about what requirements and conditions would be imposed in order to build them out. But the Shaws never formally sought the County’s approval of the plans or submitted an application for a permit to build the center. In February 2005, during the pendency of this lawsuit, the Shaws wrote a letter to the County inquiring about a permit to construct a maintenance shed on the property. They did not submit a formal application.

The County responded to the letter, asserting that the dimensions of the proposed shed exceeded what was allowed by zoning regulations; that under zoning regulations, electrical power could be connected to a maintenance structure located on the portion of the property zoned agricultural if there was a demonstrated agricultural use on the site and the shed served the agricultural use; or, alternatively, the Shaws could apply for a Level V use permit, which would require a public hearing. The Shaws responded by disputing the County’s conclusions but they still never formally applied for a permit to build the shed.

II. Procedural Background A. The Pleadings The Shaws filed their complaint on September 12, 2001.

The charging factual allegations were limited to a general claim of governmental interference with the “development” of the property; a claim that since 1997, county agents had routinely dumped street-cleaning debris adjacent to the property causing the introduction of “foreign seed” and “resulting in the proliferation of [B]ermuda grass and other undesirable weeds” on the property; and a claim that the County would not permit the Shaws to connect electrical power to their well that had already been approved by the county’s environmental health department “thus preventing watering and fire protection.” The complaint included causes of action labeled trespass, negligence, injunctive relief, taxpayer relief, inverse condemnation, “constitutional rights — civil rights,” declaratory relief, and mandamus.

The federal constitutional rights alleged to have been violated and through which the Shaws sought relief under 42 United States Code

section 1983 were abridgement of their rights under the First (free speech and expression), Fifth (takings), and Fourteenth (due process and equal protection) Amendments. In January 2002, the Shaws represented in a case management statement that “it [was] too early in the development of this case to provide an estimated court time to dispose of [it].

Defendants have recently made their first appearances and discovery is just beginning.” This statement was repeated in another of the Shaws’ case management statements filed in May 2002 and in yet another filed August 15, 2002, nearly a year after the complaint was filed. On August 26, 2002, the Shaws filed a separate action alleging the same claims against the same defendants for trespass and negligence arising out of the same facts as had been pleaded in the first action.

But this time, the pleading added a cause of action for nuisance and the required allegations concerning the presentation and denial of a claim under the Government Claims Act. (Gov. Code, § 810 et seq.) In a case management statement filed in the first action on November 22, 2002, the Shaws represented again that that case was not yet ready for trial as, “[discovery is not complete and the Administrative Record has not been prepared.” On December 4, 2002, by stipulated order, the two actions were consolidated for all purposes.

In case management statements filed February 14, 2003; May 23, 2003; and August 14, 2003, in the consolidated actions, the Shaws repeated the same statements about the case not being ready for trial because discovery and the administrative record were not yet completed. At a case management conference held on August 29, 2003, the court set the Shaws’ petition for writ of mandamus for hearing for January 23, 2004, nearly two and a half years after the action was filed. B.

The Proceeding in Mandamus The Shaws’ writ petition concerned the County’s 2001 denial of their application to connect power to their well “to provide water to their native plants, as well as fire protection.” It specifically challenged the planning department’s conclusion that the local zoning regulation relating to residential property with a main structure (Santa Cruz County Code, § 13.10.611, subd. (c)2) applied to prohibit the power connection to the Shaws’ property, distinguishing the property on the basis that it lacked structures and was therefore beyond the section’s reach.

They also contended that their use of the property for a family gardening purpose brought them within an exemption to the zoning regulation relied on by the County to preclude issuance of the Level I permit. The Shaws sought an order directing the County to perform the ministerial duty of issuing the Level I permit without a public hearing and a determination that the County had abused its discretion in denying the permit in the first place, thus failing to proceed in a manner required by law.

Documents before the court included a declaration of Michael Shaw in which he represented that the property was a “highly successful ecological habitat restoration and native plants management program.” The County opposed the issuance of the writ and maintained that under Santa Cruz County Code

section 13.10.611, subdivision (c)2, it could not have issued a ministerial Level I permit for the installation of electrical service on residentially zoned property on which no main structures had been built; that the Shaws could have proceeded with an application for a Level V permit, which would have required a public hearing, among other things; and that their failure to have done so constituted a failure to exhaust their administrative remedies. The County also contended that the Shaws’ use of the property constituted restoration and not family gardening. The matter came on for hearing on March 4, 2004. The court concluded that the County had misapplied Santa Cruz County Code

section 13.10.611, subdivision (c)2 to disallow the issuance of a Level I discretionary permit. The court agreed with the Shaws, construing this

section to be inapplicable to vacant properties, i.e., those lacking in either a main or accessory structure. The court further concluded that the Shaws’ use of the property for family gardening exempted it from the section’s reach as this was an allowed residential use according to the County’s residential use chart, an additional basis for issuance of the ministerial permit.

The court’s written order, filed April 14, 2004, concluded that “once the well permit was issued and approved and electrical power provided, [the County] had a ministerial duty to authorize the setting of the electrical meter.” The order granted the Shaws’ petition and directed the issuance of a writ of mandate “commanding the County of Santa Cruz to issue a Level I Use Permit to [the Shaws] for an electrical meter connection to be established between the previously permitted well and PG&E services.” The writ issued on May 19, 2004, and on June 7, 2004, the County served its return, accompanied by a use permit issued to the Shaws.

After the Shaws objected to the language of the permit, on July 2, 2004, the County amended its return and issued a revised use permit, for which the Shaws paid fees on August 30, 2004. Electrical power was connected in January 2005. C. Later Proceedings Leading to the Bifurcated Trial On June 26, 2006, which was some two years after the granting of the writ and some two and a half months before the expiration of the five-year statute under

section 583.310, the Shaws filed a request for an immediate case management conference to set a trial date for the remaining causes of action of their complaint. On June 29, 2006, they filed a case management conference statement — their first to indicate that the action was actually ready for trial. The statement said that trial “needs to be set prior to September 11, 2006 to avoid the five year statute.” The court set a jury trial date of August 28, 2006.

On August 11, 2006, the Shaws filed a motion seeking to file a supplemental complaint based on factual matters they had assertedly become aware of only after the litigation was ongoing. The proposed pleading added no new causes of action but added new factual allegations to the existing claims regarding the County’s alleged continued interference with “the development of’ the property occurring since the filing of the complaint.

The new allegations included that the County had failed to make applicable zoning of the property consistent with the general plan; had improperly designated a scenic corridor affecting the property; had unlawfully designated the property as being within the jurisdiction of the coastal commission; had imposed an agricultural buffer requirement on the property, which was not even suitable for agriculture; and had improperly imposed a deed restriction requirement in connection with the Shaws’ proposal to build a shed (that the structure would be maintained as nonhabitable).

The County opposed the motion, contending that the new factual claims were either barred by the statute of limitations relating to the County’s 1988 denial of the subdivision application or not ripe, the Shaws not having submitted a development application subjecting those claims to the administrative process; that the facts were irrelevant as they did not relate to the pleaded matters (the electrical permit denial and the dumping of street cleanings on adjacent property); and that the County would be prejudiced by the late allegations. The Shaws countered that under Landgate, Inc. v.

California Coastal Com. (1998) 17 Cal.4th 1006 [73 Cal.Rptr.2d 841, 953 P.2d 1188] (Landgate), the new facts were relevant to the issue whether the County had acted reasonably in denying the electrical permit application or whether its conduct was so unreasonable as to lead to the conclusion that the denial was for no purpose other than delay, which would not advance any valid government objective and would amount to a temporary taking.

The court denied the motion, concluding that injection of the late allegations on the eve of trial would be prejudicial to defendants and that trial could not be continued to mitigate the prejudice due to the imminence of the five-year statute. D. Proceedings at Trial In their trial brief, the Shaws reiterated, among other things, their right to a jury trial of their federal civil rights and constitutional claims.

Defendants brought several motions in limine, including, as relevant here, one to “bifurcate and narrow takings claims.” The motion sought to bifurcate for trial the state-law issue of the County’s liability in inverse condemnation and to have the court decide this question. It also sought to narrow this claim to those factual matters pleaded in the complaint — the denial of the use permit to set the electrical meter and the claim that the county’s dumping of street cleanings next to the property caused foreign weeds to proliferate on it.

This narrowing sought to eliminate from contention the additional factual matters that the Shaws had attempted to plead by supplemental complaint— “overlay” zoning designations relating to consistency with the general plan, a scenic corridor, inclusion in the coastal zone, agricultural buffers, and a deed restriction — based again on the fact that the claims were either time-barred or not ripe. The motion also sought to dismiss the Shaws’ federal takings claim as unripe, the Shaws not yet having exhausted their administrative remedies by obtaining a final adjudication of their state takings claim.

Another of the defendants’ motions in limine was to “exclude evidence of County denial of 1988 minor land division application” on the basis that the statute of limitations on any claim relating to the denial had long since passed and the Shaws had failed to exhaust administrative remedies on any such claim by timely challenging the denial of the application by any means. With respect to the County’s motion to bifurcate and narrow the Shaws’ takings claims for trial, the Shaws responded that the motion should be denied as untimely.

They also acknowledged that as to evidence “regarding zoning and land use designations applicable to [their] property,” they did not seek to introduce such evidence to recover damages for these designations, which they conceded were time-barred for purposes of recovery, but instead to show the context of County’s “pattern of discrimination” and “motive” as relevant to their takings claim concerning the County’s initial denial of the permit to set the electrical meter on the property.

The Shaws reiterated their right to a jury trial of their constitutional due process claims and argued that bifurcation of the issue of the County’s liability in inverse condemnation would result in inefficiency and a waste of judicial resources and would further provide for the possibility of inconsistent results as the jury would still later be hearing and deciding their related due process violation claims on much of the same evidence.

With respect to the County’s motion to exclude evidence of its 1988 denial of the Shaws’ minor land division application, the Shaws again asserted that they did not seek to introduce such evidence for purposes of damages or recovery but only to “show [the County’s] motive and to put [the Shaws’] remaining [civil rights] claims into context” by demonstrating a “pattern of discrimination against them and their development projects on the subject site since the 1980s.” The Shaws also argued that the evidence was admissible to show that the individual defendants were not immune from liability as they should have known that “the conduct complained of violated statutory or constitutional rights.” The court denied the County’s motion to exclude evidence of the 1988 denial of the Shaws’ minor land division application, ruling that there could “be evidence that the application was submitted” and that it “was denied.” But the court also ruled that “[t]here is not going to be any evidence of any kind[,] including opinion testimonyf,] as to the reasonableness or propriety of that application or denial.

It’s simply to provide context for the other claims.” The court later clarified its ruling, stating, “The fact that the application was filed, the substance of the application, obviously, assuming the application, itself, or some

summary documents would come into evidence and the fact that the county denied the application, but we’re not going to have anybody testifying as to whether this was a good application, a bad application, whether the county’s position was reasonable or unreasonable. It was not challenged and it’s just part of the history of this property with these owners. That’s it. It’s a very sterile bit of evidence, if you will.” The Shaws later made an offer of proof in response to the court’s ruling, which they understood to preclude evidence of the County’s motive in denying the minor land division application.

The offer of proof, which was directed to the due process claims and not the inverse condemnation claim, was as follows: “The substantive due process goes to the motivation of the public agency when dealing with the particular opponent. In the 1980s the [Shaws] sought a permit and they had a series of actions by the county which were [for example] you have to get a geology — a supplemental geology report in. It [was] submitted. [The County] then ruled you didn’t get the supplemental geology report in. [The Shaws] said[, ‘W]e did.

Here it is.[’ The County said, ‘]We don’t have it in our file.f] In discovery this year, 20 years later, that shows up in the county file.

That’s one example of mistreatment. [1] Other examples of mistreatment back then are not properly explaining what the various objections that are being made to the permit application and leaving] the property owner without knowledge of what was before the property owner and there’s things of this type that go on and on that I’m talking about and the Court may be talking about that, but I wanted to make that offer of proof.” The court responded by confirming that the kind of evidence referred to by Shaws’ counsel was subject to its in limine ruling.

But the court qualified its ruling by saying, “[I]t sounds like, however, that through some of [the] witnesses that are going to be here that some of that material may be used to impeach somebody but it’s not going to be introduced for the purpose of demonstrating the reasonableness of the county’s position or, indeed, to make any judgment as to what [the Shaws] were doing and why they didn’t appeal or . . . petition for writ of mandate, just the history, in other words, we have this history, but not who did what to whom in the process except to the extent if you want to suggest that somebody lied to [the Shaws] at some time, it may be something that you want to impeach somebody with.

But I am ruling on that at this point.” The Shaws’ counsel then “expanded]” their offer of proof by adding, “After the permit was denied [in 1988, the Shaws] pursued their options with the board of supervisors. They were told by their district supervisor that she would only go for one house and with the deed restriction deeding the rest of the property not to be built upon. With that they realized they were in serious trouble and . . . they didn’t have the funds.” The court responded by stating, “I’m excluding that.

It’s simply aged out.” With respect to the County’s motion to bifurcate and narrow liability issues relating to the Shaws’ inverse condemnation claim, the court initially expressed reservations, observing that the motion should have been brought earlier and that, in the court’s view, it was not a true evidentiary, in limine motion.

The County argued that the Shaws had asserted the new factual allegations only just before trial, precluding the possibility of an earlier motion, and that the court’s previous denial (by a different judge) of the Shaws’ motion to file a supplemental complaint had effectively disposed of this issue in any event. The court observed that to the extent the motion sought to dispose of the federal takings claim for the Shaws’ failure to have exhausted administrative remedies at the state level, it should have been brought pretrial as a motion for

summary adjudication. But the court also noted that the County’s legal position with regard to the claim appeared to be correct. The Shaws conceded this point with respect to the federal takings claim but argued that there was no requirement to exhaust state remedies with respect to their federal due process violation claims, as to which they had a right to a jury trial. The court disagreed, viewing the federal takings claim and the due process claims as both requiring an exhaustion of state remedies.

The Shaws continued to argue that because they had a right to a jury trial with respect to their due process violation claims, bifurcating liability issues on the state inverse condemnation claim would be inefficient because it would require them to elicit the same factual evidence twice — once before the court when trying liability in inverse condemnation and later before the jury when trying the due process violation claims. The court noted that all these claims were factually intertwined and could not be segregated and would have to be tried by the same tribunal.

The Shaws agreed, apparently in the belief that this would lead to denial of the motion to bifurcate. But the court then repeated its view that, except as to the issues of the County’s denial of the electrical permit for the well and its dumping of street cleanings, the federal claims, without distinction between takings and due process, were “not ripe.” The court continued, “I’m not trying to take away the right to a jury trial or, indeed, a right to proceed with that cause of action. It seems to be premature is the issue. I’m not . . . ruling against you to dismiss the case with prejudice or something.

The question is whether it is ripe.” The court understood that the Shaws had exhausted administrative remedies with respect to the electrical permit denial but still expressed its view that a final determination in state court on this claim too would be required before any federal claims, without distinction between takings and due process, would be ripe for adjudication. The court concluded discussion of the in limine motion by stating what it described as its “tentative ruling.” The court said, “It’s my tentative intention and I don’t know exactly how to do this.

It’s almost like [abating] a cause of action, the federal taking and the federal due process. It’s not ripe. That doesn’t mean the statutes run against you or the five-year statute is running against you. It, basically didn’t need to be filed yet and, correctly, can’t have been filed yet as it relates to those causes of action.

That would leave us with, obviously, the state taking cause of action. . ..[][]... [f] .. . [I]t would be my tentative intention, then, to, in fact, bifurcate to determine whether there has been a state taking inverse condemnation prior to asking a jury to determine the amount of compensation that would be appropriate.” The court’s tentative ruling thus did not dispose of the Shaws’ federal due process violation claims on the merits, instead only deferring them, and the court firmly stated that the ruling did not effect a dismissal with prejudice of these claims, which, again, had not even been the target of the County’s in limine motion.

After the ruling, the Shaws returned to the topic of their asserted “mistreatment]” by the County since the filing of the complaint. They reiterated those facts that they had included in their proposed but disallowed supplemental complaint — the scenic corridor, coastal zone, and agricultural buffer designations — in an effort to clarify that they were “able to use that stream of unreasonableness to put this action in proper perspective.” The court responded that it had made no orders relative to that evidence.

The bifurcated trial before the court concerning the County’s liability in inverse condemnation then proceeded, with the court and the Shaws both indicating an anticipation of a second phase of trial before a jury. But shortly into the taking of testimony, the Shaws agreed that while hearing and determining the liability question in inverse condemnation, the court — instead of a later jury — could also hear and determine the liability issues relating to the common law torts of negligence, trespass, and nuisance.

During the course of trial, the court heard some of the evidence proffered by the Shaws about their interactions over time with the County, i.e., how they were treated and the asserted unreasonableness of that treatment, relating to the denial of the permit to set the electrical meter and other matters.

These other matters included the Shaws’ contentions that the County had imposed improper designations on the property involving uses permitted by zoning, the coastal zone, a scenic corridor, and an agricultural buffer that were the subject of the Shaws’ proposed supplemental complaint and as to which the Shaws had never mounted an administrative challenge such that the County’s action could legally amount to inverse condemnation.

But at a certain point, the court began to question the relevance of this evidence by observing that the only issues before it in the bifurcated trial were the question of the County’s liability in inverse condemnation regarding the electrical permit denial and common law torts. The Shaws conceded at that point that there was not any need for them to establish in the bifurcated portion of the trial whether the County had acted reasonably, presumably because this question related to their due-process-violation claims that were not then before the court.

Yet they sought to introduce evidence relating to this question later in the course of the bifurcated trial. The court was clear in response that evidence concerning the County’s reasonableness could be taken later and that the Shaws were not “out of court” on the subject, i.e., on their due process claims. The court also indicated that even during the course of the bifurcated trial, it was open to considering evidence that the County had in effect asserted in response to a development application that the “property is going to be developed over my dead body” and invited the Shaws to produce any such evidence.

But the court still sustained the County’s relevance objections at trial to matters that it considered beyond the scope of the issues the court was then actually trying in the bifurcated proceeding.

For example, the court excluded as irrelevant some of the Shaws’ evidence concerning the proposed shed because, in its view, this did not relate to the particular inverse condemnation issue that was before the court — the permit to connect electricity — and because the County’s position regarding the shed did not rise to the level of arbitrariness, bad faith, vindictiveness, action based on personal animosity, or intentional unwillingness to apply applicable zoning and land use standards that the court considered would establish the futility exception to the general takings requirement that a claimant exhaust administrative remedies so that the claim is ripe for adjudication. (See Williamson Planning Comm’n v.

Hamilton Bank (1985) 473 U.S. 172, 190-191, 194-195 [87 L.Ed.2d 126, 105 S.Ct. 3108] (Williamson); Del Monte Dunes v. City of Monterey (9th Cir. 1990) 920 F.2d 1496, 1501; Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 649-651 [43 Cal.Rptr.3d 434].) At one point, the Shaws’ counsel made an offer of proof in response to one of the court’s rulings excluding evidence as irrelevant.

The offer amounted to the assertion that the County’s positions regarding the shed, and other matters, none of which had been pursued by formal application except for the electrical permit, were unreasonable and amounted to mistreatment — hardly an establishment of the narrow futility exception. During closing argument, the Shaws’ counsel again referenced the ways in which the Shaws contended that they had been treated unreasonably by the County in the context of their due process claims, even though these claims were clearly not then before the court.

With respect to the inverse condemnation claim, which was before the court, the Shaws’ counsel also referenced this allegedly unreasonable treatment and argued it under Landgate, stating, “Landgate was a California Supreme Court [case] and that’s what we look to.” He also conceded that the property had historically been used for “recreational” purposes, referring to the Shaws’ only historical use of the property for native-plant restoration. The bifurcated trial concluded with the court’s announcement that it would issue its decision in writing.

Defense counsel inquired if that would be in the form of a statement of decision. The court replied that it would be a “memorandum decision.” No party requested a statement of decision either then or later. E. The Court’s Memorandum Decision and Judgment Two months after the bifurcated portion of the trial ended, the court issued its written memorandum decision.

The court began by referencing that it had ruled on various pretrial motions as a result of which the issues that were tried were “whether the County was responsible on theories of trespass, nuisance, and/or negligence in allowing exotic grass seeds onto [the Shaws’] property and whether there has been a compensable taking of [the Shaws’] property as a result of erroneously failing to issue a well hookup permit.” With respect to the tort claims, the court concluded that there had been a “failure of proof’ as to the element of causation, i.e., whether the county’s conduct caused the introduction or migration of nonnative plant species or grasses onto the property.

With respect to the Shaws’ inverse condemnation claim, the court acknowledged that it had already been determined through the earlier proceedings in mandate that the County had erroneously failed to issue the Level I permit to set the electrical meter and that under the “appropriate circumstances [,] the delay caused by the failure to issue a land use permit may be compensable.” The court then detailed the timeline from the Shaws’ initial application for the permit in October 2000 until the hearing in mandate on this issue in March 2003 and attributed much of this delay to the Shaws’ “desire to conduct discovery rather than any conduct of the County in delaying the litigation.” The court noted that the County was at all times willing to “support a Level [V] (discretionary) permit process, but [the Shaws] wanted to avoid such a full public hearing process.

At no time pertinent to the pendency of their well hookup permit application did [the Shaws] file an application regarding the development of their property nor have they done so since 2003. [The Shaws] continued to use their property for recreational purposes throughout this time. It is difficult to understand under these circumstances how it can be argued that [the Shaws] have been denied all economically beneficial... or productive use of their property.” But the court also observed that “the conduct of the County needs to be discussed.

During the time this permit application was being processed the County Planning Department was either woefully understaffed or poorly organized or both. Phone calls were not returned as a matter of routine. It is easy enough to understand that there would be errors in permit application processing. Without sufficient time, County planners did not have the time to step back and use common sense in applying their regulations.

Certainly, [the Shaws] should have been provided with a copy of the [policy memo], although it does not appear in retrospect, given the position of the parties at that time, that such provision would have made any difference. The mere error in failing to issue a permit is not compensable without more. [.Landgate.] It cannot be said that the County’s position was not backed by a legitimate public interest. Always of concern from the landowner’s [perspective] is whether a position taken by the public entity was the result of an unofficial anti-development philosophy.

Such does not appear to be the case as it relates to this application. There also appears to have been a poor mix of personalities, but that does not explain the result. There has been no compensable taking.” The memorandum decision finally directed the County to “prepare a form of judgment and submit same to the court pursuant to Rule 391 [of the California Rules of Court].” County counsel prepared a form of judgment and sent it to the Shaws’ counsel for approval.

The Shaws’ counsel did not sign the proposed judgment for approval as to form but apparently indicated to the County’s counsel that he had no objection to it. County counsel then submitted the form of judgment to the court by letter with the representation that the Shaws’ counsel had no objection. The Shaws’ counsel was copied on the letter and did not contradict this representation. The court thereafter signed and entered the judgment. The judgment attached a copy of the court’s memorandum decision.

It provided, “Based on the factual findings set forth in the Memorandum of Decision, it is hereby ORDERED, ADJUDGED AND DECREED that judgment is entered for [defendants] and against [the Shaws].” It also stated, “[The Shaws’] complaint in this case is hereby dismissed with prejudice.” Notice of entry of judgment followed, which was itself followed by the Shaws’ notice of appeal., DISCUSSION I. Issues on Appeal As we see it, the Shaws essentially challenge the court’s judgment against them on their state-law claims for inverse condemnation, nuisance, and trespass.

They also claim that the court erred by excluding evidence during the course of the bifurcated trial of these claims. They further contend that the court erred by disposing of their federal claims for violation of civil rights and due process on the basis that these claims were not ripe.

To the extent their briefing raises other issues, for example whether the County’s 1988 denial of their minor land division application was reasonable; whether designated zoning overlays potentially affecting the property’s development for the coastal zone, scenic corridor, and agricultural buffers were properly imposed by the County; whether the County’s zoning of the property is consistent with the general plan; and whether the County’s response to the Shaws’ informal proposal for building a shed was unreasonable, we do not see these matters as necessary to our appellate decision and we accordingly decline to resolve them. (Palermo v.

Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65 [195 P.2d 1].) II. Legal Overview A. Takings The state and federal Constitutions guarantee real property owners “just compensation” when their land is “taken ... for a public use . . . .” (Cal. Const., art. I, § 19; see U.S. Const., 5th Amend.; Lingle, supra, 544 U.S. at p. 547; Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 773 [66 Cal.Rptr.2d 672, 941 P.2d 851] (Kavanau).) The Fifth Amendment’s takings clause, made applicable to the states through the Fourteenth Amendment, does not prohibit the taking of private property.

Rather, it places a condition — payment of just compensation — on the exercise of that power. (Lingle, supra, 544 U.S. at p. 536; Kavanau, supra, at p. 773.) The federal takings clause “ ‘is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.’ ” (Lingle, supra, at p. 537, italics omitted.) Although the California Constitution affords somewhat broader protection by also requiring compensation when property is damaged for public use, apart from this difference, the state takings clause is construed congruently with the federal clause. (San Remo Hotel v.

City and County of San Francisco (2002) 27 Cal.4th 643, 664 [117 Cal.Rptr.2d 269, 41 P.3d 87].) “The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property” — a categorical taking. (Lingle, supra, 544 U.S. at p. 537; see Brown v.

Legal Foundation of Wash. (2003) 538 U.S. 216, 233 [155 L.Ed.2d 376, 123 S.Ct. 1406].) But “government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster— and . . . such ‘regulatory takings’ may be compensable under the Fifth Amendment.” (Lingle, supra, at p. 537.) The United States Supreme Court has recognized “that a regulation of property that ‘goes too far’ may effect a taking of that property, though its title remains in private hands.

In such a case, the property owner may bring an inverse condemnation action, and if it prevails, the regulatory agency must either withdraw the regulation or pay just compensation. [Citation.] Even if the agency withdraws the regulation, the property owner may have a right to just compensation for the temporary taking while the regulation was in effect. [Citation.]” (Kavanau, supra, 16 Cal.4th at p. 773.) Two categories of regulatory action will generally be deemed per se compensable takings.

First, where government requires an owner to suffer a “permanent physical invasion” of his property for such things as cable lines, it must provide just compensation. (Lingle, supra, 544 U.S. at pp. 538-539, citing Loretto v.

Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 432 [73 L.Ed.2d 868, 102 S.Ct. 3164] [a permanent physical invasion of property, however slight, eviscerates owner’s right to exclude others from entering and using the property — the most fundamental of all property interests].) Second, where the government action does not result in any physical invasion of the property, the action will still be considered a taking if the regulation deprives the owner of “all economically beneficial or productive use of [the] land.” (Lucas v.

South Carolina Coastal Council (1992) 505 U.S. 1003, 1015 [120 L.Ed.2d 798, 112 S.Ct. 2886] (Lucas), italics added; see Lingle, supra, 544 U.S. at pp. 537-539 [the complete elimination of a property’s value is the determinative factor in the Lucas context].) “[T]he government must pay just compensation for such ‘total regulatory takings,’ except to the extent that ‘background principles of nuisance and property law’ independently restrict the owner’s intended use of the property.” (Lingle, supra, 544 U.S. at p. 538.) Regulatory takings challenges outside these two categories, i.e., those that do not involve a physical invasion or that leave the property owner with some economically beneficial use of the property, are governed by the “essentially ad hoc, factual inquiries” set forth in Penn Central Transp.

Co. v. New York City (1978) 438 U.S. 104, 124 [57 L.Ed.2d 631, 98 S.Ct. 2646] (Penn Central). (Lingle, supra, 544 U.S. at pp. 538-539; Herzberg v.

County of Plumas (2005) 133 Cal.App.4th 1, 14 [34 Cal.Rptr.3d 588] (Herzberg).) There is no set formula but “ ‘several factors . . . have particular significance.’ [Citation.] Primary among those factors are ‘[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.’ [Citation.] In addition, the ‘character of the governmental action’ — for instance whether it amounts to a physical invasion or instead merely affects property interests through ‘some public program adjusting the benefits and burdens of economic life to promote the common good’ — may be relevant in discerning whether a taking has occurred. [Citation.] The Penn Central factors — though each has given rise to vexing subsidiary questions — have served as the principle guidelines for resolving regulatory takings claims that do not fall within the physical takings or Lucas rules.” (Lingle, supra, 544 U.S. at pp. 538-539; see Herzberg, supra, 133 Cal.App.4th at p. 14.) The Penn Central factors aim to “identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.

Accordingly, each of these tests focuses directly upon the severity of the burden that government imposes upon private property rights.” (Lingle, supra, 544 U.S. at p. 539; see Herzberg, supra, 133 Cal.App.4th at p. 14.) “[T]he Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate property interests.” (Lingle, supra, 544 U.S. at p. 540.) Moreover, application of the Penn Central factors is informed by the purpose of the takings clause, which is to prevent the government from “ ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” (Palazzolo, supra, 533 U.S. at p. 618.) In other words, the “appraisal of these complicated factors is to prevent, in the framework of [the particular] case, [a claimant] from unfairly bearing public burdens which the body politic as a whole should be compelled to accept. [Citations.]” (Action Apartment Assn. v.

City of Santa Monica, supra, 166 Cal.App.4th at p. 469.) Nearly three decades ago in Agins v. Tiburon (1980) 447 U.S. 255 [65 L.Ed.2d 106, 100 S.Ct. 2138] (Agins), the United States Supreme Court declared that government regulation of private property “effects a taking if [such regulation] does not substantially advance legitimate state interests . . . .” (Agins, supra, at p. 260.) As a result of Agins, this language — suggesting a stand-alone, means-end analysis — became ensconced in the court’s Fifth Amendment takings jurisprudence. (Lingle, supra, 544 U.S. at p. 531; Monterey v.

Del Monte Dunes at Monterey, Ltd. (1999) 526 U.S. 687, 704 [143 L.Ed.2d 882, 119 S.Ct. 1624], citing cases (Del Monte Dunes).) But, even over many years, the United States Supreme Court still did not find in any single case since Agins a compensable taking based on this inquiry, instead merely assuming the validity of the “ ‘substantially advances’ ” formula when referring to it in dicta. (Lingle, supra, at p. 546.) In Lingle, the court held that the “substantially advances” formula is not a valid takings test and that it has no place in the court’s takings jurisprudence. (Lingle, supra, 544 U.S. at p. 548.) In so doing, the court reaffirmed that “a plaintiff seeking to challenge a government regulation as an uncompensated taking of private property may proceed under one of the other theories discussed [therein] — by alleging a ‘physical’ taking, a Lucas-type ‘total regulatory taking,’ a Penn Central taking, or a land-use exaction violating the standards set forth in Nollan and Dolan.” (Ibid.) Because the court decided no takings case between Agins and Lingle on the basis of the “ ‘substantially advances’ ” language, it emphasized in Lingle that its holding would not require the court “to disturb any of [its] prior holdings.” (Lingle, supra, 544 U.S. at p. 545.) The same might not necessarily be said of California takings case law that rests upon the Agins “substantially advances” formula such as Landgate, argued below by both sides and cited by the trial court in its memorandum decision.

In Landgate, the California Supreme Court used the Agins “ ‘substantially advances’ ” standard in addressing whether an agency’s erroneous land use decision constituted a temporary taking entitling the landowner to compensation or whether the agency’s action amounted instead to noncompensable normal delay in development. (Landgate, supra, 17 Cal.4th at pp. 1010, 1018.) The court held that a delay in the issuance of a development permit because of the mistaken assertion of jurisdiction by a government agency is a normal delay that, by itself, does not constitute a temporary taking. (Id. at pp. 1010, 1020-1021.) But the court also noted that a government agency may not evade the takings clause by fabricating a dispute or by otherwise arbitrarily imposing conditions on development to delay or discourage it. (Id. at p. 1029.) Under Landgate, the government’s assertion of authority, whether or not erroneous, must advance some legitimate purpose, which is measured not by inquiry into the subjective motive of the government agency but by “whether there is, objectively, sufficient connection between the land use regulation in question and a legitimate governmental purpose so that the former may be said to substantially advance the latter. [Citations.]” (Id. at p. 1022.) If so, then there is generally no taking.

But the court further observed that even though a regulation substantially advanced a legitimate governmental purpose, if the agency’s “position was so unreasonable from a legal standpoint as to lead to the conclusion that it was taken for no purpose other than to delay the development project before it,” such a tactic would not advance any valid government objective and would amount to a taking. (Id. at p. 1024.) To constitute a noncompensable normal delay in development as opposed to a taking then, an agency’s position advocated in a bona fide dispute must be plausible or objectively reasonable even though it may later be determined to be erroneous. (17 Cal.4th at pp. 1025, 1028.) Although to date, there are no California appellate cases that expressly hold that Landgate did not survive Lingle (Allegretti & Co. v.

County of Imperial (2006) 138 Cal.App.4th 1261, 1280-1285 [42 Cal.Rptr.3d 122] (Allegretti) [applying Landgate as an alternative holding to conclude no taking without deciding whether Landgate survived Lingle]; Los Altos El Granada Investors v.

City of Capitola, supra, 139 Cal.App.4th at p. 651 [generally noting that Lingle undermined the “ ‘substantially advances’ ” formula in general takings jurisprudence but not deciding its effect on Landgate]), some federal cases have held that Lingle undercuts or even eviscerates prior takings jurisprudence that had applied, as Landgate did, a test emphasizing the legitimacy of the governmental purpose when determining whether there had been a compensable taking. (Crown Point Development v. City of Sun Valley (9th Cir. 2007) 506 F.3d 851, 855-856 (Crown Point); North Pacifica LLC v.

City of Pacifica (9th Cir. 2008) 526 F.3d 478, 484-485 (North Pacifica); Los Altos El Granada Investors v. City of Capitola (N.D.Cal., July 26, 2005, No. C-04-5138-JF (PVT)) 2005 U.S. Dist. Lexis 36804; S.G. Borello & Sons, Inc. v. City of Hayward (N.D.Cal., Nov. 20, 2006, No. C 03-0891 VRW) 2006 U.S.Dist. Lexis 86293; MHC Financing Limited Partnership v. City of San Rafael (N.D.Cal., Dec. 5, 2006, No. C 00-3785 VRW) 2006 U.S.Dist. Lexis 89195.) B.

Due Process Contrasted While the takings clauses of the state and federal Constitutions guarantee property owners “just compensation” when their property is taken for public use (Cal. Const., art. I, § 19; U.S. Const., 5th Amend.), “[tjhe due process clauses of the state and federal Constitutions guarantee property owners ‘due process of law’ when the state ‘deprive[s them] of . . . property.,[] (Cal. Const., art. I, §§ 7, 15; U.S. Const., 14th Amend., § 1.)” “These distinct constitutional protections limit the legislative power of government in different but related ways.

The due process protection focuses on the government’s means and purpose: whether the government’s method rationally furthers legitimate ends. The takings protection focuses on the impact of the government’s action: whether the government has in effect appropriated private property for its own use, rather than merely regulating a private use of the property.” (Kavanau, supra, 16 Cal.4th at pp. 770-771.) The state and federal due process clauses prohibit “government from depriving a person of property without due process of law. (Cal. Const., art. I, §§ 7, 15; U.S.

Const., 14th Amend., § 1.) These provisions guarantee appropriate procedural protections [citation] and also place some substantive limitations on legislative measures [citations].

The latter guaranty— sometimes described as substantive due process — prevents government from enacting legislation that is ‘arbitrary’ or ‘discriminatory’ or lacks ‘a reasonable relation to a proper legislative purpose.’ [Citation.]” (Kavanau, supra, 16 Cal.4th at p. 771.) A procedural due process claim on the other hand requires a deprivation of a constitutionally protected interest and a denial of adequate procedural protections. (Brewster v. Bd. of Educ. of Lynwood U. School Dist. (9th Cir. 1998) 149 F.3d 971, 982; Wright v.

Riveland (9th Cir. 2000) 219 F.3d 905, 913.) Although what procedural process is due in a given circumstance may vary, it “always requires a relatively level playing field, the ‘constitutional floor’ of a ‘fair trial in a fair tribunal,’ in other words, a fair hearing before a neutral or unbiased decision-maker. [Citations.]” (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90 [133 Cal.Rptr.2d 234], quoting Bracy v.

Gramley (1997) 520 U.S. 899, 904-905 [138 L.Ed.2d 97, 117 S.Ct. 1793].) “ ‘[The Takings Clause] “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference . . . .” Due process violations cannot be remedied under the Takings Clause, because “if a government action is to be found impermissible — for instance because it fails to meet the ‘public use’ requirement or is so arbitrary as to violate due process — that is the end of the inquiry.

No amount of compensation can authorize such action.” ’ ” (Action Apartment Association, Inc. v.

Santa Monica Rent Control Opinion Board (9th Cir. 2007) 509 F.3d 1020, 1026, fn. 1 (Action Apartment).) Although in recent years, substantive due process in the context of land use regulation has taken “a winding path” (North Pacifica, supra, 526 F.3d at p. 484), the United States Supreme Court’s holding in Lingle made clear “that a challenge to land use regulation may state a substantive due process claim, so long as the regulation serves no legitimate governmental purpose.” (Ibid.) Where there is a substantive due process challenge to a government’s delays in processing a property-related application, the claimant must show that the delays “lacked a rational relationship to a government interest.” (North Pacifica, supra, 526 F.3d at p. 485, citing Crown Point, supra, 506 F.3d at p. 856.) In other words, in the substantive due process realm, it is not the extent of the burden to be borne by the landowner that is the focus of the inquiry.

It is rather the reasonableness of the government regulation or exercise of police power and the rational relationship of the regulation or action to a government purpose. (Lingle, supra, 544 U.S. at p. 542 [due process is violated where regulation is so arbitrary or irrational that it fails to serve any legitimate governmental objective]; Crown Point, supra, 506 F.3d at p. 856 [due process claim lies where land use action lacks any substantial relation to the public health, safety, or general welfare; delays in processing application violate due process where they lack a rational relationship to a government interest]; Action Apartment, supra, 509 F.3d at p. 1026 [substantive due process claim must show government deprivation of life, liberty, or property; arbitrary deprivation of right to devote property to any legitimate use gives rise to viable claim]; PruneYard Shopping Center v.

Robins (1980) 447 U.S. 74, 84 [64 L.Ed.2d 741, 100 S.Ct. 2035] [Does the regulation have a legitimate purpose to which the restriction bears a rational connection?]; Pennell v. San Jose (1988) 485 U.S. 1, 12 [99 L.Ed.2d 1, 108 S.Ct. 849] [Is the legislation arbitrary, discriminatory, or demonstrably irrelevant to the legislative policy it seeks to implement?]; County of Sacramento v.

Lewis (1998) 523 U.S. 833, 849 [140 L.Ed.2d 1043, 118 S.Ct. 1708] [Was the action intended to injure in some way unjustified by any government interest?].) Thus, although the facts and circumstances of a particular deprivation of property might constitute a taking or a due process violation, the claims are legally distinct and are subject to different analytical tests. With this in mind, we proceed to address the Shaws’ claims on appeal, after a brief, but necessary, in this case, diversion to revisit some basic principles of appellate review. III.

Applicable Limits and Scope of Appellate Review To this appeal, like every other, we apply basic tenets prescribing the scope and limits of appellate review, starting with the most fundamental — the presumption of correctness. An appealed judgment is presumed to be correct. We will indulge all intendments and presumptions to support the judgment on matters as to which the record is silent and prejudicial error must be affirmatively shown. (Denham v.

Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193]; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [275 Cal.Rptr. 797, 800 P.2d 1227].) Particularly pertinent here, and not addressed by either side, is the doctrine of implied findings. This doctrine requires that in the absence of a statement of decision, an appellate court will presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record.

In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793 [218 Cal.Rptr. 39, 705 P.2d 362], superseded on other grounds by statute as stated in In re Zacharia D. (1993) 6 Cal.4th 435, 448-449 [24 Cal.Rptr.2d 751, 862 P.2d 751]; In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 1133-1134; Fladeboe v.

American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58 [58 Cal.Rptr.3d 225].) An applicable corollary to the doctrine of implied findings is the rule that a trial court’s tentative or memorandum decision is no substitute for a statement of decision. “In a nonjury trial the appellant preserves the record by requesting and obtaining from the trial court a statement of decision pursuant to California Code of Civil Procedure

section 632 [and rule 3.1590 of the California Rules of Court]. The statement of decision provides the trial court’s reasoning on disputed issues and is our touchstone to determine whether or not the trial court’s decision is supported by the facts and the law.” (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718 [30 Cal.Rptr.2d 745].) “A memorandum opinion is not a decision. Although it may purport to decide issues in the case, it is merely an informal statement of the views of the trial judge. It does not constitute findings of fact.” (Taormino v.

Denny (1970) 1 Cal.3d 679, 684 [83 Cal.Rptr. 359, 463 P.2d 711].) There are instances in which a court’s oral comments may be valuable in illustrating the trial judge’s theory, but they may never be used to impeach the order or judgment on appeal. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646 [253 Cal.Rptr. 770] (Ditto).) This is because a trial court retains inherent authority to change its decision, its findings of fact, or its conclusions of law at any time before entry of judgment and then the judgment supersedes any memorandum or tentative decision or any oral comments from the bench. (Darling, Hall & Rae v.

Kritt (1999) 75 Cal.App.4th 1148, 1156-1157 [89 Cal.Rptr.2d 676]; Taormino v.

Denny, supra, 1 Cal.3d at p. 684.) Thus, a trial judge’s prejudgment oral expressions do not bind the court or restrict its power to later declare final findings of fact and conclusions of law in the judgment. (Ditto, supra, 206 Cal.App.3d at pp. 646-647.) In the absence of a statement of decision, a reviewing court looks only to the judgment to determine error. (Id. at p. 648.) Absent contrary indication in the final judgment or statement of decision, the appellate court will assume that, during the period before rendition of judgment, the trial court realized any error and corrected it. (Oldis v.

La Societe Francaise de Bienfaisance Mutuelle (1955) 130 Cal.App.2d 461, 472 [279 P.2d 184].) So, as here, where the option of requesting a statement of decision under sections 632 and 634 is available, the trial court’s less formal comments on the record or in the minutes are insufficient to form the basis of reversible error. As explained in Ditto, a trial court’s reasons “ ‘do not in a strict sense constitute a part of the record on appeal.’ ” (Ditto, supra, 206 Cal.App.3d at p. 646; see Birkenfeld v.

City of Berkeley (1976) 17 Cal.3d 129, 161 [130 Cal.Rptr. 465, 550 P.2d 1001].) Consequently, “ ‘[t]he memorandum decision cannot be relied upon to fill the interstices in the findings and conclusions left void by the failure to find pursuant to a properly filed request . . .’ ” for a statement of decision. (Ditto, supra, at p. 647.) Where the trial court has issued a tentative or memorandum decision, an appellate court is permitted to examine it to help interpret the lower court’s findings or conclusions, and we will not ignore the record, but the function of a memorandum decision on appellate review is very limited and it “will not be used in determining whether or not the . . . findings ... are supported by the evidence.” (Balding v.

Atchison, I & S. F. Ry. Co. (1964) 225 Cal.App.2d 254, 258 [37 Cal.Rptr. 215].) Here, the judgment expressly incorporated the findings of fact (but not the conclusions of law) contained in the court’s memorandum decision.

This is sufficient to make the court’s factual findings part of the judgment and they will accordingly guide our review of factual matters. (Estate of Janes (1941) 18 Cal.2d 512, 514 [116 P.2d 438] [findings of fact may be included in a judgment]; In re Marriage of Seaman & Menjou (1991) 1 Cal.App.4th 1489, 1494, fn. 3 [2 Cal.Rptr.2d 690].) But we are not similarly constrained as to the court’s conclusions of law and the judgment here will not be impeached either by the court’s oral comments or the memorandum decision as they pertain to legal theories or conclusions.

A formal statement of decision enables a reviewing court to determine what law the trial court employed. A failure to request a statement of decision results in a waiver of findings and conclusions necessary to support the judgment and we will accordingly infer such conclusions. Moreover, we will affirm a judgment correct on any legal basis, even if that basis was not invoked by the trial court. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 [51 Cal.Rptr.2d 444, 913 P.2d 473].) There can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct. (Rappleyea v.

Campbell (1994) 8 Cal.4th 975, 980-981 [35 Cal.Rptr.2d 669, 884 P.2d 126].) These general rules, along with the proper standard of review through which we view each claim of error, inform our review of the judgment. IV. Substantial Evidence Supports the Trial Court’s Judgment That There Was No Compensable Taking Whether the County’s actions constituted a taking is a mixed question of law and fact. (Ali, supra, 77 Cal.App.4th at pp. 250-255; Border Business Park, Inc. v.

City of San Diego (2006) 142 Cal.App.4th 1538, 1553-1554 [49 Cal.Rptr.3d 259].) Our review is neither entirely de novo nor entirely limited by the substantial evidence rule. (Ali, supra, at p. 250.) “Mixed questions of law and fact involve three steps: (1) the determination of the historical facts — what happened; (2) selection of the applicable legal principles; and (3) application of those legal principles to the facts.

The first step involves factual questions exclusively for the trial court to determine; these are subject to substantial evidence review; the appellate court must view the evidence in the light most favorable to the judgment and the findings, express or imp

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