ࡱ> ZXST[q` JbjbjqPqP :~::@ 8'LLL V nnn8*66֒fXz< $lhbnfffbb f2 b8 f rGT86ʒ ^ ~%06V6l6&6n%֛L"6 X,֛֛֛֛֛֛6ffffDJDD\d4J\bbbbbb THOMAS F. CASEY III, COUNTY COUNSEL (SBN 47562) Michael P. Murphy, Chief Deputy (SBN 83887) Miruni Soosaipillai, Deputy (SBN 160858) Timothy Fox, Deputy (SBN 190084) Hall of Justice and Records 400 County Center, 6th Floor Redwood City, CA 94063 Telephone: (650) 363-4762 Fax: (650) 363-4034 Attorneys for Defendant COUNTY OF SAN MATEO H. Ann Liroff (SB#113180) Peter W. Daniel (SB #179107) Hannig Law Firm llp 2991 El Camino Real Redwood City, CA 94061 Telephone: (650) 482-3040 Facsimile: (650) 482-2820 Attorneys for Plaintiffs Oscar Braun, Andrea Braun and The Oscar A. Braun Trust Dated 1996 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OSCAR BRAUN, ANDREA BRAUN and the OSCAR BRAUN TRUST DATED 1996, et al., Plaintiffs, vs. COUNTY OF SAN MATEO, Defendant. Case No. CV 03-03415 MJJ JOINT PRETRIAL CONFERENCE STATEMENT Date: January 11, 2005 Time: 3:30 p.m. Dept.: Hon. Martin J. Jenkins Location: Courtroom 11, 19th Floor TRIAL DATE: FEBRUARY 14, 2005  Pursuant to the Courts Pretrial Order and Federal Rule of Civil Procedure 16, the parties submit this Joint Pretrial Conference Statement. I. INTRODUCTION On July 23, 2003, plaintiffs Oscar Braun, Andrea Braun and the Oscar A. Braun Trust filed this action for violation of civil rights under 42 U.S.C. 1983 TA \l "42 U.S.C. 1983" \s " 1983" \c 14 . Plaintiffs First Amended Complaint for Violation of Civil Rights includes claims for First Amendment, Fourteenth Amendment Equal Protection, and Fourteenth Amendment Due Process violations. The dispute arises out of actions taken by defendant County of San Mateo in the context of a process to legalize certain structures at plaintiffs property at 1589 Higgins Canyon Road in the unincorporated Half Moon Bay area. Plaintiffs contend that the County took actions in that process which were done in retaliation for Mr. Brauns First Amendment activities, which activities included criticism of the County and County officials. Plaintiffs further contend that the County treated them in a manner that was different from others similarly situated, i.e. the Board of Supervisors fined the Brauns ten (10) times the published investigation fee for Planning and Building permits rather than the traditional practice of two (2) times investigation fees asprescribed by the Countys Planning and Building Division fees schedule levied against other residents of San Mateo County who sought to legalize structures on their property . The County contends that it did nothing more than require the Brauns to legalize their buildings by ensuring proper code compliance and paying the fees set by ordinance and resolution " and yet the Countys contention is factually not supported by the administrative record or published San Mateo County Planning and Building Division fee schedule. The Brauns had agreed to pay the lawful two times the CDP permit fee of $7440 ( two time the normal permit fee of $3720.). Plaintiffs contend that the County treated them in a manner that was different from others similarly situated in retaliation for criticizing the Board of Supervisors coastal apartheid policies. The legalization process culminated in the denial of permits by the San Mateo County Board of Supervisors on July 23, 2002 and the issuance of an Order of Abatement with no opportunity to cure outside of an administrative mandamus action. The Resolution by the Board of Supervisors denying the permits stated that the requirements for legalization of the septic system for the affordable housing unit (an unpermitted mobile home placed on the property by the Brauns for a tenant) had not been met; that the requirements for legalization of the well/water source for the affordable housing unit (again, the mobile home) had not been met; and that the required fees had not been paid in full for issuance of permits for (1) the affordable housing unit, (2) a 720 sq. ft. sun room roof enclosure to the main house, (3) a stable, (4) a tractor shed, (5) an agricultural barn, (6) water tanks, and (7) a storage shed adjacent to the stable. The plaintiff contend that unreasonable new conditions were placed upon the granting of the permits by the Board of Supervisors after the County Planning Commission had conditionally approved them. Plaintiffs subsequently filed a state court action against the County in state Superior Court, seeking, among other things, a declaration that the fees were improper and not required for issuance of the permits for legalization of the various structures on the property. In particular, plaintiffs disputed the amount and timing of the fees imposed by the Board of Supervisors, including the amount and timing of investigation fees. Investigation fees are permit fees imposed in cases (such as plaintiffs) where construction is completed without applying for or obtaining necessary permits, and then permits are sought after the fact to legalize completed structures. The fees are designed to compensate the County for the additional work involved in investigating and resolving code violations in completed structures. The County filed a cross-complaint for code enforcement relating to the permit violations detailed above. The state court action was set for trial in July 2004, but was settled in late June 2004. Plaintiffs continued to pursue this action in federal court, alleging that the Countys handling of this matter violated their civil rights. II. STATEMENT OF ISSUES A. PLAINTIFFS LEGAL ISSUES 1. Was retaliation for First Amendment activities a motivating factor in the County Board of Supervisors actions with respect to the Brauns permit applications? 2. If the answer to 1 is yes, has the County met its burden to prove that regardless of any improper motive, the County would have taken the same course of action? 3. If the answer to 2 is no, what is the amount of damages due to plaintiff? B. DEFENDANTS LEGAL ISSUES 1. Is the Board of Supervisors the final policymaker, under a 42 U.S.C.A. section 1983 analysis, for matters related to the proceedings with regard to plaintiffs property at 1589 Higgins Canyon Road, unincorporated San Mateo County? 2. Do actions by the Board of Supervisors require a majority vote of their members to constitute action by the final policymaker for purposes of analysis under 42 U.S.C.A. section 1983? 3. Did the County of San Mateo violate plaintiffs First Amendment rights of free expression by retaliating against them for their prior exercise of such rights during the process of considering and acting on permits to legalize unpermitted construction on plaintiffs property at 1589 Higgins Canyon Road, unincorporated San Mateo County? a. Was plaintiffs speech public speech protected by the First Amendment? b. If the answer to issue 3(a) is yes, did the final policymaker know of plaintiffs First Amendment speech? c. If the answer to issue 3(b) is yes, was plaintiffs speech a substantial or motivating factor in the decision by the final policymaker? d. If the answer to issue 3(c) is yes, would the final policymaker have made the same decision regardless of plaintiffs First Amendment speech? e. If the answer to issue 3(d) is yes, was the decision by the final policymaker pretextual? III. PLAINTIFFS POSITION Summary of Legal Contentions Section 1983 of Title 42 of the U.S. Code, enacted by Congress pursuant to 5 of the Fourteenth Amendment, creates an action for damages and injunctive relief against local governmental bodies, including counties, who deprive a plaintiff of rights, privileges, or immunities secured by the constitution. Section 1983 incorporates the Fourteenth Amendment, which incorporates the Bill of Rights and applies them to the states. Constitutional violations actionable through Section 1983 include violations of the Fourteenth Amendment standing alone, such as procedural due process or equal protection, or violations of the Bill of Rights. First Amendment provisions for Freedom of Speech, Freedom of the Press and Freedom to Petition are among the rights applicable to the states through the Fourteenth Amendment. The Brauns contend that the County, and most particularly its Board of Supervisors, retaliated against them for exercising their First Amendment right to free speech. Specifically, the Brauns contend that the County Board of Supervisors employed unusually draconian measures in addressing an appeal of the Planning Commissions approval of permits to legalize certain structures on their property. The Brauns have been outspoken critics of the County of San Mateo and various local no-growth environmental groups for many years. Specifically, Mr. Braun has been alleging for years that officials of the County are enmeshed in a kind of unholy alliance with local environmental groups, such as the Committee For Green Foothills, the Sierra Club, the Peninsula Open Space Trust, and others, collectively known as the Coastal Open Space Alliance (COSA). Mr. Braun contends that the County and COSA have for many years engaged in certain activities legal, quasi-legal, and illegal with the purpose and intent of expanding the interests and property holdings of COSA, at the expense of private residents in the coastal region. The Brauns contend that they are the most recent victims of these activities, most particularly because they are outspoken critics of both the County and COSA. Specifically, the Brauns allege that the County Board of Supervisors has engaged in the following retaliatory acts, including, but not limited to: Rejecting the ruling and advice of their own Planning Commission and County Counsel by adding additional, onerous conditions to the Brauns permit approval, at the behest of private citizens who were political opponents of the Brauns. Charging planning and building permit fees before any investigation had been conducted to determine what the actual fees should be. Enlarging the Countys inquiry into the Brauns property to involve inspections to look for violations which bore no relationship to existing issues, and doing so after the Brauns had already engaged in a protracted and arduous permitting process with the Planning Commission that had finally been resolved. Recording a second Notice of Violation on the Brauns property when the first notice was already in place, and doing so knowing that this act had the potential to damage the Brauns opportunity to enter into a lucrative contract with Sprint. Ultimately denying the Brauns permit applications, and issuing an Order of Abatement directing the Brauns to tear down structures on their property, which Order indicated that the Brauns would have no further opportunity to legalize said structures. This denial of permits was ostensibly done because the Brauns refused to pay fees imposed by the County, in spite of the fact that those fees were in violation of state law. The Brauns intend to submit evidence at trial to substantiate their claims that these acts were done in retaliation for protected First Amendment activities. The evidence will fall under the following broad categories: Evidence of close proximity in time between the Brauns political speech and the Countys various punitive activities against them. Most particularly, the Brauns will establish that they were involved in a contentious process wherein they staunchly opposed the COSA/County plan known as the Devils Slide Project contemporaneous with the Board of Supervisors hearing of the appeal on the Brauns permit application Evidence suggesting that those who opposed the Brauns permit applications were motivated by a desire to retaliate against the Brauns for protected speech, and that the County was politically aligned with these opponents, and followed their unreasonable recommendations regarding the handling of the permit applications. Evidence that the Countys purported legitimate reasons for treating the Brauns in the manner that they did are all false and/or pretextual. Evidence that members of the Countys Board of Supervisors had openly and publicly censured and criticized Mr. Braun, and expressed personal animosity toward him, shortly prior to the Boards rulings regarding the Brauns permit applications. Evidence of a financial relationship, in the form of campaign contributions, between Lenore Roberts, the Brauns opponent in the permit process, and members of the Board of Supervisors. Evidence that the County has admitted under oath that it took measures against the Brauns that were unprecedented in the Countys history, without any explanation as to what characteristics of the Brauns circumstance necessitated such measures. The Bauns also contend that the Countys conduct, from the very first to the very last, has followed a pattern of retaliation. The Brauns contend that the retaliation began in 1998 and has continued up through today. Most recently, the Brauns, through a local political lobby group, sued the Countys Local Agency Formation Commission (LAFCO) and obtained a temporary injunction against it. Shortly thereafter, the County settled the Brauns state court Mandamus action, which was filed to compel the County to issue the Brauns the permits which they contend they should have received in 2002. In that settlement, the County promised to issue permits to the Brauns within a certain timeframe. The Brauns contend that the County has purposefully dragged its feet in performing its obligations under the mandamus settlement agreement, and has in fact violated the terms of that agreement. This continued reluctance to issue the Brauns their permits, close in time to yet another exercise of First Amendment rights on the part of the Brauns, shows a longstanding pattern of retaliatory conduct that has permeated this entire six-year process. Statement of Damages The Brauns contend that the Countys activities, and most especially their recording of two Notices of Violation and a Notice of Abatement without opportunity to cure, which have clouded the title of the property, have diminished the value of the property over time, and have made it essentially impossible to sell the property while the market was stronger. The Brauns also contend that as a result of the Countys actions, they have lost an opportunity to enter into a contract with Sprint to permit the leasing of space for relay towers on their property, which would have resulted in revenues to the Brauns in the millions over a period of several years. Finally, the Brauns are seeking general damages for violation of their civil rights. The Brauns damages include the following items: 1. Diminution in the value of their property. 2. Lost revenue opportunities. 3. Costs and expenses associated reappraisal and refinancing of the property. 4. Emotional distress. 5. Attorneys fees and costs in prosecuting the Brauns administrative mandamus action. Summary of Facts and Certain Key Pieces of Evidence Plaintiffs Oscar Braun and Andrea Braun (collectively the Brauns) are citizens of the State of California, residing at 1589 Higgins Canyon Road in the unincorporated Half Moon Bay area of San Mateo County, California (hereinafter the Property). At all times relevant to this action, the Brauns have been the beneficial owners of the Property. Defendant County of San Mateo (the County) is a local public entity, located within the jurisdiction of the United States District Court, Northern District of California. The County administers and controls the process for issuance of planning, development, horse stable, affordable housing, environmental health and building permits in the unincorporated areas of the County of San Mateo. Oscar Braun is the president of the Half Moon Bay Coastside Foundation, aka Save Our Bay (hereinafter Save Our Bay), and the Brauns residence serves as the headquarters for Save Our Bay. Save Our Bay is a community-based, 501(c)(3)nonprofit, environmental-watchdog, charitable corporation, which was established at the personal request of the late United States Secretary of Commerce Ron Brown and was later incorporated on December 23, 1999. Save Our Bay is a recognized member and active participant in the NOAA Water Quality Protection Program aka WQPP, the RWQCB Stormwater Pollution Prevention Program aka STOPPP, the California Coordinated Resource Management Planning Council aka Coastside CRMP Council, and the Coastside Fire Safe Council (representing San Mateo County Coastal Zone which compromises approximately 73% of Countys land area). Save Our Bay also founded the Half Moon Bay Chapter of the Surfrider Foundation. From its location in the heart of the San Francisco Peninsula watershed, the Save Our Bay facility provides early detection fire alert and access to the upper levels of the watershed from the West. Save Our Bay has established the California Watershed Posse, whose members work with landowners and other governmental agencies to develop and implement integrated landscape scale Coordinated Resource Management Plans to assure NEPA/CEQA compliance, ecosystem sustainability, and effective Fire Safe landscape and watershed planning. Through his work with Save Our Bay, Oscar Braun has actively sought to establish a comprehensive watershed management program in San Mateo County to avert catastrophic environmental damage to the Peninsula watershed from natural and human-made causes, including environmental terrorism, firestorm and drinking water contamination. In so doing, among other controversial projects, and in criticizing the status quo and drawing attention to the vulnerability of existing neglected and unmanaged watershed conditions in the County, Plaintiffs have taken positions that are politically unpopular with the County and others. Plaintiff Oscar Braun has long been outspoken on issues of public interest. In addition to being the president of Save Our Bay, Oscar Braun is also the online publisher of the California Watershed Posse Town Hall forum, and the co-founder of the San Mateo County rural lands farming community organization, the Coastal Family Alliance. Many of Mr. Brauns written opinions on political matters can be found at the web links: California Watershed Posse aka  HYPERLINK "http://www.cwposse.org/" www.cwposse.org ; Half Moon Bay Coastside Foundation aka Save Our Bay  HYPERLINK "http://www.saveourbay.org/" www.saveourbay.org ; No Apartheid 4.Us  HYPERLINK "http://www.noapartheid4.us" www.noapartheid4.us ; No RICO gov 4 Us at  HYPERLINK "http://www.noricogov4.us/" www.noricogov4.us ; No Invasive Species4 Us at  HYPERLINK "http://www.noinvasivespecies4.us/" www.noinvasivespecies4.us ; Wise Use 4 Us at  HYPERLINK "http://www.wiseuse4.us/" www.wiseuse4.us ; The Pebble News at  HYPERLINK "http://www.thepebble.us/" www.thepebble.us Eco-Justice 4 Us Forum at  HYPERLINK "http://www.ecojustice4.us/" www.ecojustice4.us ; Lake Berryessa Visitors Services Planning Taskfore at  HYPERLINK "http://www.lbvspt.info/" www.lbvspt.info ; and Oscar Knows Inc at  HYPERLINK "http://www.oscarknows.com/" www.oscarknows.com ; Mr. Braun is also spearheading a drive to incorporate approximately 100,000 acres of unincorporated rural coastal lands in the County, and publishes a website in support of the incorporation project, "Rural Lands Inc" at  HYPERLINK "http://www.rlinc.org/" www.rlinc.org . Mr.Braun has utilized these forums under his First Amendment rights of freedom of speech and of the press as a frequent critic of the Board of Supervisors and various County practices, policies and programs, including the Devils Slide project and the failure of the County to provide adequate services to coastal residents. He is a frequent speaker before the County Board of Supervisors and other local, state and federal agencies. He uses the website as a clearinghouse for news, reports and other information on public issues concerning coastal San Mateo County. Mr. Braun regularly sends e-mails to a list of recipients that includes local residents, government officials at the local, county, state, and federal level, and members of the press. On February 22, 2001, Letter to the Editor: Streams, Horses and Money! The Committee for Green Foothills (CGF) Op/Ed piece Clean steams and healthy Horsekeeping was vintage Clintonian style lobbyist spin! CGF is the most powerful and successful legislative land use lobbying machine in San Mateo County with a impressive track record for acquiring Mission Impossible type Coastal Development Permits (CDP) for those having deep pockets needing CGF political clout. When Chief Lobbyist Roberts proposes, the SMC Planning Administrator and Commission usually rubber stamps the CGF clients development application. CGF lobbying campaign to adopt a special horsekeeping ordinance is all about creating a new lucrative revenue stream for CGF and the SMC Planning Department. The SOB Watershed Posse has yet to find a single case of a environmentally threatened stream because of horsekeeping in San Mateo County in the seven years we have been testing and monitoring coastal water resources. In 1998 CGF, on behalf of Wildlife Associates, effortlessly obtained County approval to develop a breeding, training and housing center for their sixty wild exotic Detrimental species on prime agricultural land adjoining the Arroyo Leon endangered species critical habitat stream area. After receiving a $50,000 retainer, CGF masterfully crushed the Higgins Canyon Homeowners united opposition to this environmentally detrimental development. The State of California requires a special permit for wild exotic invasive species if they are defined as Detrimental! Wildlife Associates holds a State Fish & Game Detrimental Species Permit for their exotic wild animals because the State says: they pose a threat to native wildlife, the agricultural interest of the state or to public health or safety and are termed detrimental animals and are designated by the letter D. CGF lobbyist Roberts, County Planning Administrator Terry Burnes and Farm Bureau Administrator Jack Olson told the County Ag Advisory Council and Planning Commission that these wild Detrimental species should be treated just like any other domesticated farm livestock in San Mateo County. WHY? More big bucks for CGF lobbying fees and millions of dollars from CDP fees for the County Environmental Planning Department. When people tell you it isnt about the MONEY.its ALL about the MONEY! Horse lovers hold onto your wallet and participate in the SMC Planning Commission Horse Keeping Ordinance hearing process. March 2, 2001, Save Our Bay received a letter from Joseph W. Cotchett, Esquire to Oscar Braun and John Plock regarding the SOB Streams, Horses & Money Op/Ed letter. Mr. Cotchetts letter stated in part: These statements are defamatory per se and are not privileged. There is absolutely no basis for making such false statements. If they persist, our office will take the appropriate legal action-and your continued participation in the distribution of such untruths will result in increased liability to both of you personally. Sincerely, Joseph W. Cotchett with cc: Mark Delaphine , California Coastal Commission, Marcia Raines, Environmental Management Director, San Mateo County, Zoe Kersteen Tucker, Lennie Roberts, Committee for Green Foothills , Deirdre Holbrook, Half Moon Bay Review. March 8, 2001, a letter from Maryann Dresner Esquire to Oscar Braun regarding SOB Streams, Horses & Money Op/Ed letter on behalf of Wildlife Associates states in part. Dear Mr. Braun, As I stated previously, you most stop making further false statements regarding Wildlife Associates, the Committee for Green Foothills, the relationship between those two organizations, or either of their relationships with any government agency. I am sure you are aware that either organization or both may obtain a Restraining Order prohibiting further statements attesting to those matters. Very truly yours, Maryann Dresner. cc: Steve Karlin for Wildlife Associates, Mark Delaphaine for the California Coastal Commission, Marcia Raines for San Mateo County Environmental Management, Lennie Roberts for the Committee for Green Foothills, Deirdre Holbrook for the Half Moon Bay Review, Joseph W. Cotchett, Esq. April 25, 2001 letter to Mike Nevin, President, San Mateo County Board of Supervisors, Gail Raabe, San Mateo County Agricultural Commissioner, Marcia Raines, Director of Environmental Services from John Plock, Environmental Director, SOB Watershed Conservation Posse re: San Mateo County Conformance with USDA: Horses are Livestock and stated in part: The San Mateo County equestrian community has circulate the following petition (authored by Oscar Braun) and have gathered over 2300 signatures. Petition: Save Our Horses! Our horse community is under siege and rapidly becoming a candidate for the endangered species list. Horse owners throughout the County of San Mateo are fighting a losing battle against the unfair burden of sky rocketing special taxes, fees and zoning laws that are destroying the rich historical legacy that these magnificent animals have represented. This State considers horses to be livestock and requires no fees or taxes on these farm animals herbivoreshorses, cows, sheep, goats etc. San Mateo County has a special non-livestock definition for horses and assess extremely high fees and taxes. Our horse population is literally disappearing from rural San Mateo County. Sign this petition to save our horse heritage. Sign this petition to bring San Mateo County Horse ordinance into conformance with the USDA and California definition of livestock. Sign this petition to end special taxes and fees on horses. Sign this petition to protect the quality of life in San Mateo County! Its a rural legacy worth passing on to our children! (Attached #1 current CDP fee schedule). January 21, 1998 a letter from Coastside Open Space Alliance (COSA) operative Chuck Kozak to Malcolm Smith of the Mid-peninsula Regional Open Space District (MROSD) re: MROSD letter to Coastsiders, list of landowners. Mr. Kozaks letter lists some of the COSA targeted landowners ( primarily the 8000 acre Dean & Dean holdings) and states in part: 1. Lennie Roberts suggested including a phrase about Agricultural Lease Back being a set policy for the District ( probably in 5th or 6th paragraph ), to alleviate any immediate fears of Ag operations being eliminated. 2. Zoe Kersteen-Tucker suggested that the sentence in the 4th paragraph beginning with Following these discussions, the Board will determine if expansion. be eliminated and the remaining of the 4th paragraph be combined with the 3rd. The Reason is that phrases like .the Board will determine can ruffle feathers (we have some easily ruffled folks over here). Regarding the large landowners list-I only had sketchy notes on that, but this was what I was able to reconstruct (some of these are last names only): Ag folks: Sabasco, Figone, Mueller and Muzzi. Farm Bureau: Betty Stone and Jack Olsen. Developers with large tracts of land: Robert Naify, Keet Nerhan. Lennie also said she had given some names to Mary Davey, so hopefully you have what you need-if we need to, we can do a work session to get all these together along with phone numbers and contacts. Let me know. Thanks for all your help and hard work on this project-were all very excited about the District expansion moving forward, and were pretty convinced everyone else over here will be, too. Chuck Kozak (650-728-8239 email:  HYPERLINK "mailto:cgk@well.com" cgk@well.com Chuck Kozaks letter had an one page attachment on MROSD stationary regarding in part A friendly condemnation is one in which the seller wishes the District to threaten to initiate condemnation proceedings during negotiations to purchase land, in order to take advantage of certain tax benefits that may be accomplished only when condemnation is threatened or utilized. On December 2, 1998, Plaintiffs made applications for legalization of a mobile home in which a developmentally disabled farm laborer (Mr. Neves) resided as affordable housing, as well as a stable, tractor shed, agricultural barn and shed, and to replace a code-mandated, but leaking, water tank used for fire suppression. Plaintiffs Braun have a vested interest in maintenance and repair of the water tank by having received a building permit for its original installation and because it is essential for the Plaintiffs and the publics safety. On November 14, 2001 ,after years of delay, the Brauns PLN1999-00079 applications were finally unanimously approved and granted by the Countys Planning Commission. The Commissions Executive Summary of Findings for PLN1999-00079 stated: The proposed project, as conditioned , complies with all applicable General Plan Policies and Local Coastal Program Policies specifically those related to visual impacts. The Project is also consistent with all applicable Resource Management Coastal Zone and stable regulations. In early December 2001, Lennie Roberts, the Legislative Advocate for the Committee for Green Foothills and Cynthia Giovannoni, co-owner of Half Moon Bay Sealing & Paving, filed their Applications of Appeal to the Countys Board of Supervisors: As Lennie Roberts January 15, 2002 testimony before the Board of Supervisors indicated, since January 1998 to the present time, the Appellants and members of the Coastal Open Space Alliance (COSA) have published their political views, ambitions and repeatedly re-defined the nature of their private sector open space enterprise partnerships with elected officials of the County of San Mateo, Mid-Peninsula Regional Open Space District (MROSD) and other public governmental and regulatory agencies; the Appellants publications, public speech and proclamations clearly reveals the motives behind their relentless retaliation campaign against the Brauns stable and affordable housing development permits and the unconstitutional ( denying Equal Protection & Due Process under the Fourteenth Amendment) basis for their appeals under the color of law can be reviewed online at COSA cartel members websites:  HYPERLINK "http://www.GreenFoothills.Org/news/archive.html" http://www.GreenFoothills.Org/news/archive.html ,  HYPERLINK "http://www.OpenSpace.Org" www.OpenSpace.Org ,  HYPERLINK "http://www.OpenSpaceTrust.Org" http://www.OpenSpaceTrust.Org ,  HYPERLINK "http://www.Packard.Org/" http://www.Packard.Org/ ,  HYPERLINK "http://www.Moore.Org" http://www.Moore.Org ,  HYPERLINK "http://www.Surfrider.Org" http://www.Surfrider.Org ,  HYPERLINK "http://LomaPrieta.SierraClub.Org/" http://LomaPrieta.SierraClub.Org/ ; and Save Our Bay v. MROSD Writ of Mandate e-Administrative Record MROSD Coastal Annexation Project ; or Save Our Bay v. County of San Mateo LAFCO Writ of Mandate e-Administrative Record ; in addition to Oscar Braun and Save Our Bay Devils Slide Tunnels Project Coastal Development Appeal e-Administrative Record; in letters to the Brauns from COSA attorneys Joseph W. Cotchett (Committee for Green Foothills) and Maryann Dresner (Wildlife Associates); in their multiple letters and comments to the County of San Mateo Planning Commission; in their hi-profile coordinated appeal letter writing campaign to the County of San Mateo Board of Supervisors ; also in their well publicized online real estate scheme regarding their targeted Moon Acres Ranch, the last missing strategic parcel of the infamous Dean & Dean aka Westinghouse 8,000 acre holdings to complete the $200 million POST-Packard-Moore Foundations County of San Mateo Save Our Endangered Coast campaign goal ; and lastly their well orchestrated public protest testimony before the Board of Supervisors agenized Braun stable and affordable housing Appeal Hearing on January 15, 2002, alleging that the content of the Brauns application PLN1999-00079 is not consistent with Save Our Bays widely published EnviroBank Press Releases announcing the marketing of Moon Acres Ranch to either the County of San Mateo or to the Peninsulas open space trust community. The Appellants decried to the Board that the content of the EnviroBank Press Releases cites Sprint antennae cellular sites, two water wells and a helicopter landing area. Based solely on the contents of these press releases, Appellants asked the Board of Supervisors to order an investigation to search for new code violations on the Brauns property that were unrelated to the matter then before the Board. The following are selected quotations from Appellants presentation to the Board: The County has allowed this Applicant to defer payment of the Violation/Investigation fees until the Building Permit Application stage. The CDP should not be granted until the outstanding Application Violation/Investigation fees are paid. The security gate, located adjacent to Higgins Canyon Road, but off Mr. Brauns property, is not shown on the Site Plan. The project plans and description do not include all elements of the project, as described in a Press Release sent by Mr. Braun to various newspapers announcing the sale of the property (see attached). Mr. Brauns Press Release indicated that the house was approximately ten thousand square feet structure. Mr. Braun refused to answer a question from the Planning Commission as to whether the house was built according to the plans approved by the County. The CDP should not be granted until the County can verify that the house, as approved by the County in 1991, was built according to the approved plans. Additionally, Mr. Brauns Press Release includes reference to an agricultural well on the property. Is this well being used for domestic purposes? If so, does it meet water quality standards? The CDP should not be granted until the adequacy of the well(s) to serve the proposed affordable housing unit is determined. Condition 15 of the CDP requires that legalization of the septic system shall occur prior to the issuance of the building permit, and that the septic system shall meet current setback requirements. This condition should not be left to the building permit stage, but should be required prior to the issuance of the CDP.It is also unlikely, given his track record, that Mr. Braun will ever comply with the requirements in Condition 15, which carries out Mitigation Measure Number 1 in the environmental document. Only when the Planning Commission (and County Counsel) informed Mr. Braun that his objections to the Mitigation Measure would result in the Countys being unable to approve the Negative Declaration, did he agree to remove his objections, while still claiming he was being coerced. In his Press Release dated April 19, 2001, and accompanying offering entitled Protecting Californias Future, Envirobank: Moon Acres Ranch, Mr. Braun states that his property includes a helicopter landing area. The proposed project ( PLN 1999-00079) does not include such an area. We request that Condition 1 be amended to specifically state that no helicopter landing area is permitted. In summary, it has taken nearly four years and extraordinary efforts on the part of Building Inspection, Planning Environmental Health , and County Counsel to get Mr. Braun to legalize his buildings. The County has had to go to court to compel Mr. Braun to comply with the Countys zoning and building regulations. He refused to state at the Planning Commission whether the house was constructed according to his CDP. He stated he was being coerced into agreeing to the Mitigation Measure. He has not paid his Violation/Investigation fees. We respectfully request the Board to require the Applicant to comply will all of the above-referenced outstanding issues, prior to issuance of the CDP. Appeal of PLN 1999-00079 BOS Appeal Hearing Transcript 01/15/02 Lennie Roberts testimony before the Board of Supervisors in part: While he has proceeded to build numerous structures without permits, he at the same time filed complaints against state parks and county public works department, he has appealed coastal development permits for Half Moon Bay Grading and Paving and Wildlife Associates which are two properties in the area in each of these cases there have been unanimous votes to approve the projects of the Planning Commission, the Board of Supervisors, and the Coastal Commission. He also alleged there was an illegal and hazardous dump on the Casannelli Ranch property which is now owned by POST. These allegations have not proven to be correct. He filed a complaint against the storage of hay in a barn on the Casannelli Ranch. He has also applied to the Assessors office to have his property taxes reduced based on these allegations as to the hazards on adjacent properties. Hes also refused to allow the Planning Commission to be on site when they went out to visit the property prior to their consideration of this permit, so they had to look at the property from the road. He also, I think , attempted to intimidate some of the planning staff throughout the processes. Some of you have actually received copies of e-mails that he sent out or he called the Planning Administrator the Gestapo (sic). We believe that based on Mr. Brauns own widely distributed offering of the subject property through his organizations, Half Moon Bay Coastside Foundation, dba Save Our Bay, and its EnviroBank program, he did not build his house according to County approved plans. In this offering that he made available to various newspapers and I think, Supervisor Gordon received a copy of this as well. He describes the house as 10,000 square feet. The county needs to determine whether the house has in fact been built according to the plans that he submitted. Because during the planning commissions deliberation on of the planning commissioners asked whether the house had been built according to the approved plans and he refused to answer that question. Given the track record of this applicant, we request that the Board direct the staff to investigate, but the staff wont do it unless the Board does direct this. To investigate whether the applicant has indeed built the house according to the approved plans and we also, as we said before, request that the violation and investigation fees be paid now, prior to issuance of the coastal permit and not defer it to the building permit stage. I think it may be difficult to get those at that point. Thank you. (January 15, 2002 , Board of Supervisors Appeal Hearing PNL 1999-00079) Summary of Planning Commission & Staff Findings & Recommendations: Deny the Appeal of PLN 1999-000 because The proposed project, as conditioned, complies with all applicable General Plan Policies and Local Coastal Program Policies specifically those related to visual impacts. The Project is also consistent with all applicable Resource Management Coastal Zone and stable regulations January 16, 2002 , Letter from Board of Supervisors to Appellants re: CDP Appeal Hearing for PNL 1999-00079: Dear Ms. Roberts and Ms. Giovannoni, The Board of Supervisors continued this matter for ninety (90) days to: Have the applicant pay all fees due for planning, building and environmental health permits and approvals, including all applicable investigation fees and penalties due for construction without permits. Have staff record a Notice of Violation (NOI) , to be released only when all required permits are finaled. Have Environmental Health investigate and clarify sewage disposal and water supply issues and their proposal solution. Have Planning and Building verify that the main house complies with approved plans and determine the appropriate remedy if it does not. The County has claimed through deposition testimony that they have followed a practice of charging ten times the normal building fees. However, the record reveals that the County has followed a practice and policy for over twenty years (as shown by the 1994 Investigation Fees Memo of Terry Burnes SMC published Planning and Building Fee Schedule) of charging investigative fees of two times the normal cost of Planning and Building Permit fees and ten times the cost only for grading and tree cutting violations done without the benefit of a CDP. The Administrative Record reveals that as a condition to legalize their development, the Braunsagreed topaythe traditional two times investigation fees of $7440. Also, as noted on the both the 1994 memo and June 2004 SMC Planning and Building Fee Schedule attached, there are NO Fees (waived by resolution of the BOS) for farm labor or affordable housing and the fees for the "Confined Animal Keeping Certificate of Exemption" (for 5 horses or less)is $114...... not $20,132.80or 10 times anything. Hence, the County charged the Brauns in a manner that was not only illegal under state law, but different from what they had traditionally charged others. July 23, 2002 Notice of Final Local Decision Subject PLN1999-00079 : Based on the information provided by staff and evidence presented at the hearing, the Board of Supervisors accepted the staff recommendation, made the findings, denied the above referenced permits and adopted Resolution #065454 as attached. August 28, 2002 Notice to Abate Building and Zoning Violations 1589 Higgins Canyon Road, Half Moon Bay, California Because you were denied the required discretionary planning permits, you will not be able to apply for any building permits to legalize this work. Therefore, you must obtain demolition permits to remove the un-permitted and illegal structures. The County of San Mateo and the Brauns exhausted the Coastal Development Permit application administrative process on August 28, 2002. In October 2002, Oscar and Andrea Braun filed a Writ of Mandate lawsuit against the County of San Mateo in the California Superior Court. July 2, 2004 Pre-Trial Settlement Agreement re: Save Our Bay, Bernie Neves, Oscar and Andrea Braun v. County of San Mateo. Settlement terms stated herein, hereby agree as followed: #8 There is no release of any claims presently pending in the federal action between the parties, entitled Oscar Braun v. San Mateo County, , U.S.D.C. Northern District of California No. 3415 MJJ, which is a civil rights action under 42 U.S.C. Section 1983 (1983 Action ). Adjudication of the federal claims proceed without prejudice. #10 .however, as recited in paragraph #8 above, this Settlement Agreement and this release do not in any way limit or restrict the arguments Plaintiffs may pursue or the damages Plaintiff may claim in the 1983 Actions. Thomas F. Casey III , on July, 2004 signed the Settlement Agreement on behalf of the County of San Mateo. July 22, 2004 Ex Parte Hearing before the Honorable Marie S. Weiner: See City of Half Moon Bay v. Superior Court (Yamagiwa v. California Coastal Commission) 106 Cal. App.4th 795 ( 1st Dist. 2003) SMC Superior Court, Case Number 402781, Case Name: Joyce Yamagiwa , et al, v. California Coastal Commission et al Re: Under the doctrine of exhaustion of administrative remedies, where an administrative remedy is provided by statue, relief must be sought from the administrative body and this remedy exhausted before the courts will act. (Citation) This rule is not a matter of judicial discretion, but is fundamental rule of procedure laid down by the courts of last resort, followed under the doctrine of stare decisis and binding upon all courts. (Citation) Exhaustion of administrative remdies is, in short, a jurisdictional prerequisite to resort to the courts. (Citation) The rational is the prevention of interference with the jurisdiction of administrative tribunals by the courts, which are only authorized to review final administrative determinations. (Citation) July 27, 2004, San Mateo County Board of Supervisors Agenda Item 13, De Novo Administrative Hearing for Consideration of an application for a Coastal Development Permit, a Resource Management Coastal Zone Permit and Stable Permit County File Number: PNL 1999-00079 (Oscar Braun) See Statement and Documents for the record on behalf of Oscar Braun. Ted Hannig protests the County of San Mateo violating the terms of the settlement, changing the condition of settlement and making their new CDP application appealable to the Coastal Commission. The County of San Mateo continues to deny and violate the Brauns their Fourtheeth Amendment civil rights to Equal Protection and Due Process under the Constitution of the United States. IV. DEFENDANTS POSITION Defendant contends that the decision to deny the permits was rationally based on the existence of permit violations, and the dispassionate application of the Boards ordinances and resolutions setting legalization fees; and that accordingly, there is no claim that presents any basis for liability against the County. The Court heard defendants motion for summary judgment on November 9, 2004, and the motion is currently under submission. The grounds for defendants motion were that plaintiffs cannot establish the necessary elements of any of their three causes of action, which allege that the County violated plaintiffs First Amendment rights of free expression, and Fourteenth Amendment guarantees of equal protection and due process. Plaintiffs named only the County as a defendant, but cannot satisfy the requirements for entity liability established by Monell v. New York City Dept. of Soc. Svcs., 436 U.S. 658, 98 S.Ct. 2018 (1978), and its progeny that a final policymaker must have committed or ratified a Section 1983 TA \s " 1983"  violation for the entity to be liable. There was no dispute in the summary judgment briefing that the Board of Supervisors is the final policymaker for the County. The County argued that summary judgment dismissing all of plaintiffs claims is warranted on the grounds that plaintiffs could not establish the elements necessary to prevail on any of their claims under a Monell analysis. Plaintiffs Cannot Establish that the Board of Supervisors Action Was in Retaliation for the Exercise of First Amendment Rights Plaintiffs allege that actions taken by the County were in retaliation for their exercise of their First Amendment rights of free expression. Because only the County as an entity has been named as a defendant, and because the Board of Supervisors is the final policymaker for purposes of the claims asserted, only the actions of the Board are subject to scrutiny. In order to prevail on their First Amendment claim, plaintiffs must plead and ultimately prove that their conduct was protected by the First Amendment, and, second, that such conduct prompted retaliatory action by the Board [of Supervisors]. Arroyo Vista Partners v. County of Santa Barbara, 732 F. Supp. 1046, 1055 (C.D. Cal. 1990) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568 (1977)). As part of a prima facie case, a plaintiff must show that the protected conduct was a substantial or motivating factor in the defendants decision. Mt. Healthy, 429 U.S. at 287. A defendant can rebut a prima facie case by showing that it would have made the same decision regardless of plaintiffs First Amendment activity. Mt. Healthy, 429 U.S. at 287. If defendant is successful in rebutting the inference of retaliation, the burden again shifts to plaintiff to show that defendants explanation is merely a pretext. Miller v. Fairchild, 797 F.2d 727, 731 (9th Cir. 1986). A plaintiff may establish retaliatory motive by producing (1) evidence that the decision-maker knew of the protected speech, and (2) evidence of at least one of the following: (a) proximity in time between the protected speech and the adverse decision such that a jury could infer retaliation, (b) the decision-makers expressed opposition to the speech, or (c) false or pretextual reasons for the decision. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 75152 (9th Cir. 2001). Thus, in order to prove that retaliation was a substantial or motivating factor in the decision to deny their permits, the Brauns must necessarily first establish that a majority of Board members were aware of their expressive conduct. However, mere evidence of such awareness is not enough. Keyser, 265 F.3d at 75152 (plaintiffs must produce more than evidence that employer knew of protected activity); Strahan v. Kirkland, 287 F.3d 821, 825 (9th Cir. 2002) (evidence of knowledge of protected activity alone not enough). It is defendants contention that plaintiffs cannot present evidence to establish any of the three types of evidence necessary to establish liability of the part of defendant. First, plaintiffs cannot meet their burden with regard to the proximity in time test. According to plaintiffs own allegations, they have been vigorously engaged in their protected First Amendment activities continuously since at least 1995. Here, the totality of circumstances leads to the conclusion that no reasonable inference of retaliation can be drawn from the timing of the Boards action. By plaintiffs own assertion, their robust exercise of their First Amendment rights has been ongoing for many years. Further, unlike the situation in virtually all employment First Amendment cases, the Board was not in a position to pick and choose the time of its purported retaliatory action; instead, the matter came before the Board in the normal course of events and even then, only because third parties took an appeal from the Planning Commission. Thus, plaintiffs will not be entitled to a presumption of retaliatory motive merely because of timing. Second, plaintiffs cannot adduce any evidence demonstrating that a majority of Board members expressed opposition to plaintiffs exercise of their First Amendment rights. Frequently, governmental decision makers are required to make choices that will be embraced by some and decried by others. In this case, there is no evidence to indicate that a majority of Board members expressed opposition to plaintiffs alleged exercise of their First Amendment rights. Plaintiffs have remote evidence of only two members of the Board even having an opinion about Mr. Brauns past speech activities. Plaintiffs are required by Monell to adduce evidence that three members of the Board (i.e., a majority, as required by Monell) were concerned about Mr. Brauns political activities. Accordingly, plaintiffs will not be able to produce even circumstantial evidence of retaliatory motive on the part of the Board acting through a majority. Finally, plaintiffs will be unable to present evidence of false or pretextual reasons for the decision. The issues before the Board were straightforward: (1) did the structures meet all requirements for issuance of the required permits, and (2) were the plaintiffs willing to pay all fees necessary to secure these permits? Based on evidence presented at the hearing, and the Brauns unwillingness to pay the fees to legalize the structures, the Board denied the permits (and, in fact, had no option but to deny the permits given its conclusions that the fees were owed by the Brauns). Because plaintiffs provided the Board with this quite adequate non-retaliatory reason to deny legalization, evidence of retaliatory motive is irrelevant. Even if retaliatory motive could be established, defendant can nevertheless prevail if it can establish that the same decision would have been reached anyway. In this case, establishing that the result of the Board of Supervisors hearing would have been the same regardless if plaintiffs political speech had never been made will be a simple matter. When plaintiffs refused to pay the fees set by ordinance and resolution, the Board was left with no choice but to decline to issue permits. There is no doubt that the decision would have been the same even without Oscar Brauns history of speech on matters of public interest. By refusing to pay the fees set by ordinance, Mr. Braun made the Boards decision easy, and made the Boards alleged retaliatory motives irrelevant. Plaintiffs Equal Protection Claim Fails Because They Cannot Establish That They Have Been Intentionally and Irrationally Treated Differently Plaintiffs contend that they have experienced treatment with regard to the processing of their permit applications that was different from other similarly situated persons. They do not claim that their disparate treatment arose from their membership in any protected class, nor do they claim that the County impinged upon any fundamental right. Rather, their claim is solely a selective enforcement claim under Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 (2000). Where, as here, state action does not implicate a fundamental right or a suspect classification, the plaintiff must establish a class of one equal protection claim by demonstrating that it has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Village of Willowbrook, 528 U.S. at 564. The County legitimately may choose to enforce its laws against plaintiffs rather than other property owners so long as the decision is not arbitrary. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505 (1962). Additionally, plaintiffs in the Ninth Circuit must do more than simply show arbitrary action they must show that the named defendant was motivated by animus. Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 948 (9th Cir. 2004) (At a minimum, to prevail, Squaw Valley must show that Goldbergs conduct was motivated by animus.) In particular, because plaintiffs have elected to sue the government entity under Monell, plaintiffs must show that the motivating animus was held by a majority of the Board of Supervisors, as described above. Plaintiffs will not be able to show any of these elements. Plaintiffs Cannot Establish Either a Procedural or Substantive Due Process Claim Plaintiffs titled their Third Count Violation of Procedural Due Process. Despite having pled a procedural Due Process claim, plaintiffs later characterized it as a substantive Due Process claim in their Opposition to Defendants Motion for Summary Judgment. However, the Ninth Circuit does not recognize substantive Due Process claims in the land use arena, because such rights are addressed by a more specific provision of the Constitution. Armendariz v. Penman, 75 F.3d 1311, 132526 (9th Cir. 1996) (We have held that substantive due process claims based on governmental interference with property rights are foreclosed by the Fifth Amendment's Takings Clause.) Even if the Court were to recognize a substantive Due Process claim, any substantive due process claim relating to the amount of the fees would be rendered moot by the settlement of the state court lawsuit between the parties. On July 2, 2004, plaintiffs and defendant entered into a Settlement Agreement resolving a state court lawsuit arising out of the same Board action that constituted the basis of this lawsuit. Paragraph 1 of the Settlement Agreement provides: Plaintiffs will pay the additional amount of $12,000 to defendant County of San Mateo by July 1, 2004, in advance of a decision on the issuance of planning permits by the County. This will constitute full payment of all permit and investigation fees, for each and every permit which is the subject of this action, including planning permits, building permits and environmental health permits. All fees have been paid; the Settlement Agreement has never been rescinded, and remains in full force and effect. The jurisdiction of federal courts depends on the existence of a case or controversy. GTE Cali-fornia, Inc. v. Federal Communications Commn., 39 F.3d 940, 945 (9th Cir. 1994). Ordinarily, a party must maintain a live controversy through all stages of the litigation process. Doe v. Madison School Dist. No. 321, 177 F.3d 789, 797 (9th Cir. 1999). The settlement of a plaintiffs claim moots an action. See Lake Coal Co. v. Roberts & Schaefer Co., 474 U.S. 120, 106 S.Ct. 553 (1985). A case may be moot as to some issues, even though it remains live as to others. Powell v. McCormack, 395 U.S. 486, 497, 89 S.Ct. 1944, 1951 (1969). Here, whether or not other claims are ultimately dismissed, it is clear that the settlement of plaintiffs claims for overpayment of fees moots plaintiffs substantive Due Process claim. In summary, it is defendants position that plaintiffs have taken a dispute over the handling of land use permits that belonged in state court (where an action based on the same facts was in fact filed), and attempted to transform it into a federal civil rights case. While they may be dissatisfied with the results of the process by which land use decisions are made in San Mateo County, plaintiffs will be unable to establish any violation of their constitutional rights on the part of defendant or any evidence that they suffered damages at the Countys hands. V. WITNESSES A. PLAINTIFFS WITNESSES 1. Oscar Braun, Plaintiff 2. Andrea Braun, Plaintiff 3. Bernie Neves, farm laborer Moon Acres Ranch 4. John Plock, Chair Save Our Bay 5. Ted Hannig Esq. 6. Gino Magri , farmer 7. James Rice, Soil Farm 8. Carl Hoffman, Stables, POST tenant 9. Roxy Stone-Hoffman, RCD Director, POST tenant 10. Chris Andreson, adjoining neighbor 11. Rusty Tate, adjoining neighbor 12. Don & Leatha Pretre, adjoining neighbors 13. Albert Kitty Hernandez, adjoining neighbor 14. Michael Thaxton , V.P. Bank of America Loan Officer 15. Charles & Betty Shafae , President HCHA 16. William & Margaret Herndon, HCHA 17. James and Anna Marie Spilker, HCHA 18. Richard Braun, brother and HCHA 19. Douglas Brinkmeier & Kim Hargraves , HCHA 20. John & Catherine Dull, HCHA 21. Charles & Cheryl Curry, HCHA 22. Thomas & Kathleen Ferenz, ,HCHA 23. Walter & Patricia Ferenz, HCHA 24. Kenneth J. Habeeb, Real Estate Appraiser 25. Terry Burnes, former SMC Planning Administrator 26. William Cameron, SMC Building Dept. 27. Jim Eggemeyer, SMC Planning Review Manager 28. Steve Hartsell, Health Dept. InspectorCoastside 29. Paul Koenig, former Director Environmental Services 30. Dean Peterson, Director Enviro. Health Dept. 31. Anne Jensen, SMC Solid Waste Investigator 32. Gary Warren, SMC Code Enforcement 33. Margaret Hernandez, SMC Code Enforcement 34. Laura Thompson, SMC Planner 35. Kelly Pepper, Sprint PCS 36. Jim Mattison, Green Drake Engineering (Sprint) 37. Cynthia Giovannoni, HMBS&P 38. Lenore Roberts , CGF Lobbyist 39. Marcia Raines , SMC 40. Gary Giovannoni , HMBS&P 41. Steve Karlin, Wildlife Associates 42. Tom Pacheco, former RCD, landfill operator 43. Audry Rust, President POST 44. John Wade, former POST 45. Jack Olson, SMC Farm Bureau 46. Craig Brittan, MROSD 47. Martha Payotos, SMC LAFCO 48. Mary Davey, CGF & MROSD 49. Zoe Kersteen-Tucker, CGF 50. Brian Zamora, Director SMC Health Dept., 51. James Rourke, RCD 52. Sheriff Deputy John Gonzales 53. Sheriff Sgt. Dal Porto 54. Deputy Counsel Michael Murphy 55. Deputy Counsel Miruni Soosaipillai 56. Mark Delaphaine, CCC 57. Deirdre Holbrook, POST ( HMB Review Editor) 58. Gary Arata, farmer 59. Louis Figone, farmer 60. John Mueller, Chair San Francisco RWQCB 61. Robert Naify, E-Top (Dean & Dean) 62. Keet Nerhan, KN Properties (Dean & Dean) 63. Tim Hudson, farmer, PMAC 64. John & Clarence Arata, farmers 65. Chuck Kozak, Coastal Alliance 66. George Mozingo, SAMCAR 67. Michael Murphy, rancher 68. Vince Muzzi Esq. 69. Ron Sturgeon, farmer 70. Terry Gossett, California for Property Rights 71. Nina Pellegrini, Citgizens for Responsible Open Space 72. John Silver, SMC Planning Commission 73. Ralph Nobles, SMC Planning Commission 74. Bob Vasquez, Former SMC Planning Commission 75. Dominic Muzzi, famer 76. ADA Parker Kelly, SMC 77. John Quinlan, SMC Sheriff 78. Loretta Barsamian, San Francisco RWQCB 79. Rosie Slaughter, Director Examinations TE\/GE Div., IRS 80. Brian Arnold, State Fish & Game 81. Steve Furrer, U.S. Fish and Wildlife Service 82. Ging Bill Wong, FHWA 83.Norman Mineta, U.S.Secretary of Transportation 84. U.S. Senator Dianne Feinstein 85. Congressman Richard Pombo 86. U.S. Senator Charles Grassley , Budget Committee 87. Susan Gladstone, San Francisco RWQCB 88. Habte Kifle, San Francisco RWQCB 89. Ann Crum, San Francisco RWQCB 90.Walter Moore, VP, POST 91. Paul Ringgold, POST 92. Leonard Warren, Granada Sanitation District 93. April Vargus, CGF 94. Tim Duff, California Coastal Conservancy 95. Christopher Thuallog 96. Catherine Slater Carter 97. Thomas Huening, SMC Controller 98. Father Domingo, Our Lady of the Pilar 99. Robert Smith, Army Corp. of Engineers 100. David Tom, SMC Election Division 101. Tim Frahm, SMC Farm Bureau 102.Peter La Tourrette, President, CGF 103. Dianne McKenna, Chair POST 104. Karie Thomson, Chair, POST Coastal Campaign 105.Susan Packard Orr, Chair Packard Foundation 106. George Vera, CFO Packard Foundation 107. Gordon Moore, Founder of Moore Foundation 108. Lewis W. Coleman, President, Moore Foundation 109. James Reynolds, RCD Director 110. Richard Allen, RCD Director, POST tenant B. DEFENDANTS WITNESSES 1. Miroo Brewer, former employee of San Mateo County Planning and Building Division 2. Terry Burnes, San Mateo County Planning and Building Division 3. William Cameron, San Mateo County Planning and Building Division 4. Jim Eggemeyer, San Mateo County Planning and Building Division 5. Gary Fitzer, San Mateo County Planning and Building Division 6. Steve Hartsell, San Mateo County Environmental Health Services Division 7. Paul Koenig, former employee of San Mateo County Planning and Building Division 8. Dean Peterson, San Mateo County Environmental Health Services Division 9. Anne Jensen, San Mateo County Environmental Health Services Division 10. Gary Warren, San Mateo County Planning and Building Division 11. Margaret Hernandez, San Mateo County Planning Code Compliance 12. Mark Church, Member of the San Mateo County Board of Supervisors 13. Rose Jacobs-Gibson, Member of the San Mateo County Board of Supervisors 14. Rich Gordon, Member of the San Mateo County Board of Supervisors 15. Jerry Hill, Member of the San Mateo County Board of Supervisors 16. Mike Nevin, Member of the San Mateo County Board of Supervisors 17. Lily Toy, former Planner, County of San Mateo 19. Laura Thompson, former employee of San Mateo County Planning and Building Division 19. Kelly Pepper, Alaris Group (Sprint issue) 20. Jim Mattison (Sprint issue) 21. Cynthia Giovannoni, Brauns neighbor VI. EXPERT WITNESSES A. PLAINTIFFS EXPERT WITNESSES Plaintiff does not intend to call any expert witnesses to testify at trial. B. DEFENDANTS EXPERT WITNESSES 1. Monica Ip will testify that, assuming a finding of liability, the plaintiffs suffered damages in the amount of $396,995 in connection with the Sprint Site Agreement, and $62,464 in connection with the delay in refinancing the mortgage on their property; and that if the plaintiffs were to produce an agreement with NexTel similar to the agreement with Sprint, the amount of damages would be similar. A copy of Ms. Ips report, with a corrected Exhibit 1, and Ms. Ips CV are attached to this statement as Exhibit 1. 2. Victor Reizman will testify that the recorded notices of violation would not have prevented the plaintiffs from being able to list the property for sale with a real estate broker, sell the property, or obtain financing on the property; and that the value of the property would be affected only to the extent of the cost to remedy the violations. A copy of Mr. Reizmans report and CV are attached to this statement as Exhibit 2. VII. ADDITIONAL MATTERS TO BE ADDRESSED BY THE COURT A. Order Establishing A Reasonable Limit On The Time Allowed For Presenting Evidence (FRCP 16(c)(15)) Given that the court has set aside 10 court days for the trial of this matter, the parties seek an order limiting each side to four days for the presentation of evidence. B. Avoidance Of Unnecessary Proof And Of Cumulative Evidence (FRCP 16(c)(4)) 1) Defendant seeks a ruling from the court to limit the introduction of evidence which does not relate to actions taken by the County Board of Supervisors (based on Monell). In their opposition to defendants motion for summary judgment, plaintiffs did not oppose defendants argument that Monell limits the case to consideration of only those actions taken by the Board of Supervisors. Such a ruling essentially would limit the relevant time frame to events which occurred from December 2001 (when materials were first presented to the Board in connection with the first hearing in January 2002) through July 2002 (when the Board made its final decision and sent out notice of that decision). 2) Defendant seeks a stipulation from plaintiffs that the Court should take judicial notice of the following documents: the documents attached to defendants Request for Judicial Notice submitted in connection with its Motion for Summary Judgment (attached hereto as Exhibit 3). 3) Defendant seeks a stipulation from plaintiffs to admit into evidence the Administrative Record of hearings before the Board of Supervisors on January 15, 2002, April 16, 2002, June 18, 2002, and July 23, 2002. 4) Defendant seeks a stipulation from plaintiffs to admit into evidence the transcripts of the hearings before the Board of Supervisors on January 15, 2002, April 16, 2002, June 18, 2002, and July 23, 2002. 5) Defendant seeks a stipulation from plaintiffs to admit into evidence the videotapes of the hearings before the Board of Supervisors on January 15, 2002, April 16, 2002, June 18, 2002, and July 23, 2002. 6) Defendant seeks a stipulation from plaintiffs that the Court should take judicial notice of the following document: San Mateo County Ordinance Code, Zoning Regulations, Chapter 1.5 (6105.0 through 6105.4). 7) Defendant seeks a stipulation from plaintiffs to admit into evidence the Settlement Agreement, dated July 2, 2004, of the state court action between the parties (San Mateo County Superior Court Case No. 426174). Dated:  DATE \@ "MMMM d, yyyy" December 24, 2004 H. Ann Liroff The Hannig Law Firm Attorneys for Plaintiffs OSCAR BRAUN, et al. Dated:  DATE \@ "MMMM d, yyyy" December 24, 2004THOMAS F. CASEY III, COUNTY COUNSEL By: Michael P. Murphy, Chief Deputy Attorneys for Defendant COUNTY OF SAN MATEO  FILENAME \p \* MERGEFORMAT L:\LITIGATE\B_CASES\Braun, Oscar\joint pretrial conf stmt - Defs Dec 15 DRAFT.doc  The Second and Third Causes of Action were dismissed by this Court pursuant to Defendants Motion For Summary Judgment on December 21, 2004, whereas the motion was denied with respect to the First Cause of Action. This Statement therefore assumes that only the First Cause of Action is operative for trial.   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