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Court of Appeal, Second District, Division 1, California.

Robert J. GILLILAND, Plaintiff and Appellant, v. The CITY OF PALMDALE, a municipal corporation, Defendant and Respondent.

Civ. 59028.

Decided: December 07, 1981

Fadem, Berger & Norton, Michael M. Berger, Santa Monica, for plaintiff and appellant. Kostas & Epson, James S. Kostas, Palmdale, for defendant and respondent.

 Plaintiff appeals from a judgment on the pleadings without leave to amend.   Our review of such a judgment is controlled by time-honored rules of law.   A motion for judgment on the pleadings performs the function of a general demurrer (Tiffany v. Sierra Sands Unified School Dist. (1980) 103 Cal.App.3d 218, 222, 162 Cal.Rptr. 669):  it tests the sufficiency of the complaint to state a cause of action.  (Id., at pp. 224–225, 162 Cal.Rptr. 669.)   Like a demurrer it is confined to the face of the pleading under attack and admits all material and issuable facts pleaded.  (Id., at p. 225, 162 Cal.Rptr. 669.)   Accordingly, we shall assess the legal adequacy of the following facts drawn from plaintiff's complaint and accepted as true.


In 1965 plaintiff became the owner of five acres of vacant land in the defendant City of Palmdale (hereafter the property) which were located in the path of a takeoff and approach runway at Air Force Plant 42, a joint civilian-military airport.   At the time that plaintiff acquired the property it was zoned “A–2.”   According to the Palmdale zoning ordinance, of which we take judicial notice (Evid.Code, § 452(b);  Baillargeon v. Dept. of Water and Power (1977) 69 Cal.App.3d 670, 676, 138 Cal.Rptr. 338), the classification A–2 was “established for use on land suited for agricultural purposes and other open land uses.  ․ [t]he basic intent of this Zone [is] to encourage and support the development of agricultural pursuits.   To further this purpose limitations are imposed on incompatible and conflicting urban uses.”   (Ord.No.140, ch. 3, art. 32, zone A–2, § 32.01.)   Permissible uses of the land thus zoned include:  one-family dwellings;  animal hospitals, schools and kennels and veterinary offices;  youth camps and other camp grounds;  crops;  auction grounds;  stock breeding and yards;  riding academies and stables.   The A–2 zoning category functioned as a holding zone, so-called, such that applications for a zone change from A–2 were subject to particularly careful and detailed scrutiny in respect of the uses that would occur under the change.

In January 1973 plaintiff applied to the Palmdale Planning Commission for a zone change to a “commercial planned development” zone.   On January 19, 1973, the Planning Commission voted five to zero in favor of plaintiff's requested zone change.   On May 11, 1973, plaintiff's request was heard before the Palmdale City Council.   A representative of Air Force Plant 42 and a representative of the civilian contractors at Air Force Plant 42 testified in opposition to plaintiff's requested zone change.   The City Council voted three to one against plaintiff's requested zone change based on the proximity of the property to runways at Air Force Plant 42.   As a result of the City's refusal to rezone his property as requested, plaintiff suffered damages of more than $325,000.

 On April 15, 1975, plaintiff filed in superior court an “amended complaint for inverse condemnation,” alleging all the above facts which we accept as true for purposes of reviewing the judgment.   Plaintiff further alleged that his private property had “been unlawfully taken and damaged for public use without just compensation and without due process and equal protection of the laws to which [he was] entitled by the United States and California Constitutions.”   The complaint contained additional conclusionary allegations which we discount as surplusage.1  (Agins v. City of Tiburon (1979) 24 Cal.3d 266, fn.2, 157 Cal.Rptr. 372, 598 P.2d 25 (dis. opn. Clark, J.);  Hecton v. People ex. rel. Dept. of Transportation (1976) 58 Cal.App.3d 653, 657, 130 Cal.Rptr. 230;  6th Camden Corp. v. Evesham Tp., Burlington Cty. (D.N.J.1976) 420 F.Supp. 709, 720.)

On March 14, 1979, the California Supreme Court decided Agins v. City of Tiburon, supra, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25, and held that the remedy of inverse condemnation was not available to a landowner aggrieved by the negative impact of a zoning regulation on his property rights.   Such a plaintiff was limited, the court held, to mandamus or declaratory relief to redress the government's excessive exercise of its police power to regulate land use.   On the plaintiff's action for declaratory relief, the court held as a matter of law that no taking of plaintiff's land had occurred through enactment of the zoning regulation in question.  (Id., at pp. 277–278, 157 Cal.Rptr. 372, 598 P.2d 25.)

 On July 17 and 18, 1979, the motion of defendant City of Palmdale for judgment on the pleadings was argued in the trial court.   On July 18, 1979, the court granted defendant's motion, noting in its minute order, “The Court, having reviewed and considered the pleadings and outline of the evidence as presented by counsel for the plaintiff, finds that there has been no taking or damaging of property.” 2

On June 10, 1980, the United States Supreme Court decided the appeal of Agins, supra, from the California Supreme Court and affirmed the holding that the zoning regulation in question did not take the plaintiffs' property without just compensation.  (Agins v. Tiburon (1980) 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106.)   But because no taking had occurred the court did “not consider whether a State may limit the remedies available to a person whose land has been taken without just compensation.”  (Id., at p. 263, 100 S.Ct. at 2143.)

On June 25, 1981, plaintiff filed his opening brief in this court, announcing in his introduction, “This case seeks enforcement of rights under the U. S. Constitution (Fourteenth Amendment) and the federal Civil Rights Act (42 U.S.C. § 1983).”


 Notwithstanding plaintiff filed this case six and a half years ago as a complaint for inverse condemnation, his characterization of the action on appeal is accurate.   The complaint invokes plaintiff's rights under the United States Constitution and specifically alludes to rights protected by the Fifth and Fourteenth Amendments thereto.   All that is required to bring a claim under the federal Civil Rights Act (42 U.S.C. § 1983) is an allegation that one has been subjected by any form of state action to the deprivation of any right secured by the Constitution of the United States.3   (Gomez v. Toledo (1980) 446 U.S. 635, 640, 100 S.Ct. 1920, 1924, 64 L.Ed.2d 572.)   There is no want of federal civil rights cases in which the gravamen of the claim is a taking of private property without just compensation in violation of the Fifth and Fourteenth Amendments, such as plaintiff has asserted.  (See, e.g. Hernandez v. City of Lafayette (5th Cir. 1981) 643 F.2d 1188;  Gorman Towers, Inc. v. Bogoslavsky (8th Cir. 1980) 626 F.2d 607;  Barbaccia v. County of Santa Clara (N.D.Cal.1978) 451 F.Supp. 260;  Dahl v. City of Palo Alto (N.D.Cal.1974) 372 F.Supp. 647.)   An action under the federal Civil Rights Act can be brought in state court (Martinez v. California (1980) 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481;  Williams v. Horvath (1976) 16 Cal.3d 834, 837, 129 Cal.Rptr. 453, 548 P.2d 1125;  Brown v. Pitchess (1975) 13 Cal.3d 518, 520–523, 119 Cal.Rptr. 204, 531 P.2d 772), and can be brought against a municipality (Monell v. Department of Social Services (1978) 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611.)   Altogether we perceive no obstacle to treating this case on appeal as such an action.

 When a federal civil rights action, or other federally created cause of action, is brought in state court, the vindication of that right cannot be frustrated by state law.  (Williams v. Horvath, supra, 16 Cal.3d at 841, 129 Cal.Rptr. 453, 548 P.2d 1125.)   In matters of substance the law of the jurisdiction creating the right will control;  in other words, federal substantive case law should be applied.  (Cf. Central Vermont Railway Co. v. White (1915) 238 U.S. 507, 511, 35 S.Ct. 865, 867, 59 L.Ed. 1433.)

 Thus the chief benefit to plaintiff of viewing his complaint in a civil rights perspective is avoidance of the devastating effect of the California Supreme Court holding in Agins v. City of Tiburon, supra, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25.   Following Agins the remedy of inverse condemnation with its imposition of money damages no longer exists in California law.  (Id., at p. 272, 157 Cal.Rptr. 372, 598 P.2d 25.)   A zoning regulation, no matter how unreasonable or severe its impact on a landowner's property rights, can never effect a “taking” within the meaning of the Just Compensation Clause of either the United States or California Constitutions.   It must be regarded as an excessive exercise of the police power from which the injured landowner must seek relief by mandamus or declaratory action to have it set aside.  (Ibid.)

California's position flatly contradicts clear precedent of United States Supreme Court cases.   Although the United States Supreme Court since the California Agins has twice on a procedural or technical basis declined to reach the issue and resolve the conflict (Agins v. Tiburon, supra, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 and San Diego Gas and Electric Co. v. San Diego (1981) 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551), Justice Brennan in his dissenting opinion in San Diego Gas and Electric, joined by three members of the Court, has thoroughly analyzed it.   Reviewing the United States Supreme Court cases on inverse condemnation, he points out that the Supreme Court regularly hears cases to settle on the particular facts whether a taking that triggers payment of just compensation has been effected by an exercise of the police power through a zoning ordinance or other land use restriction.   (Id., 450 U.S. at pp. 649–650, 101 S.Ct. at pp. 1303–04, 67 L.Ed.2d at pp. 572–573.)   The court thus clearly assumes such a possibility.  (See, e.g. Penn Central Transportation Co. v. New York City (1978) 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631;  Goldblatt v. Town of Hempstead (1962) 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130.)   Dicta abound in these cases on the standards by which such a determination should be made.   In Agins, supra, 447 U.S. at 260–261, 100 S.Ct. at 2141, for instance, the court stated, “[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, see Nectow v. Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928), or denies an owner economically viable use of his land, see Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138, n. 36, 98 S.Ct. 2646, 2666, n.36, 57 L.Ed.2d 631 (1978).   The determination that governmental action constitutes a taking is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest.   Although no precise rule determines when property has been taken, see Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) the question necessarily requires a weighing of private and public interests.”

 While Justice Brennan's conclusion—that government action in the form of a police power regulation can effect a taking just as surely as eminent domain, and the Constitution demands then that just compensation be paid—awaits another vote before it invalidates the California Supreme Court holding of Agins, supra, there is no question that the federal law accepts in theory the remedy of inverse condemnation with its imposition of money damages for a “taking” effected through a zoning regulation.   Plaintiff herein, therefore, is not out of court on a judgment on the pleadings for the reason that the remedy he seeks has been abolished in state law.

 While plaintiff's suit remains viable under the Civil Rights Act as to the remedy it seeks, it is no less susceptible as a civil rights action to judgment on the pleadings for failure to state a cause of action, or as it is termed in federal parlance, “a claim upon which relief can be granted.”   (Fed.Rules Civ.Proc., rule 12(b)(6), 28 U.S.C.)   Contrary to plaintiff's interpretation of the trial court's ruling as reflected in his brief arguing for application of federal law, the wording of the judgment below indicates the trial court granted the motion because the facts alleged failed to show any “taking,” not because it failed to apply federal law.   It is immaterial of course on what ground the trial court granted judgment on the pleadings if that was the correct decision.  (Apelian v. County of Los Angeles (1968) 266 Cal.App.2d 550, 554, 72 Cal.Rptr. 265, disapproved on another point in Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 722, 117 Cal.Rptr. 241, 527 P.2d 865.)   We think it was.

 We acknowledge and apply the federal policy that a civil rights pleading should be liberally construed;  that “․ a § 1983 complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.   (Citation.)”  (Shaw v. Briscoe (5th Cir. 1976) 541 F.2d 489, 490, cert. den. 430 U.S. 933, 97 S.Ct. 1556, 51 L.Ed.2d 778.)   We acknowledge and are willing to apply, if this were an appropriate case, the wisdom of federal “taking” cases according to which there is no “set formula to determine where regulation ends and taking begins” (Goldblatt v. Town of Hempstead, supra, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130);  and the determination is one of reasonableness that entails “ad hoc, factual inquiries” (Penn Central Transportation Co. v. New York City, supra, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631), resolution of which is inappropriate on a motion to dismiss.  (M. J. Brock & Sons, Inc. v. City of Davis, (N.D.Cal.1975) 401 F.Supp. 354, 358;  Dahl v. City of Palo Alto, (N.D.Cal.1974) 372 F.Supp. 647, 648.)   Even so, plaintiff's facts, construed as liberally as possible, indeed taken as true, when evaluated by the standards that the federal cases have evolved, beyond doubt could not make out a “taking” and do not warrant a trial on the merits.

The crucial features of plaintiff's situation are that both at the time that he acquired the property and at the time that he brought the lawsuit, the property was both located in the path of the Air Force runway and zoned A–2.   The only intervening government action was the City's refusal to rezone on plaintiff's request to enable him to develop the property for commercial use.   If, as plaintiff interprets the situation, the City, by permitting only low density agricultural use of the property, in effect has devoted the property to the use of the Air Force or to the public as a clear zone at the end of the Air Force runway, then it had already done so when he acquired the property.   The City by refusing to rezone has not deprived him of any property interest that he ever had.   Rather, in a more accurate perspective, the City has refused to give him a greater property interest than he acquired.

Plaintiff's claim of a government taking under these circumstances is uniquely slim, as far as we can tell from the cases.   The more familiar fact situation, in which a motion for judgment on the pleadings or to dismiss has been denied, presents the affirmative enactment of a zoning change or the adoption of a general plan by the government entity which limits the plaintiff's economic exploitation of the property affected.  (See, e.g., Sanfilippo v. City of Santa Cruz (N.D.Cal.1976) 415 F.Supp. 1340 [motion to dismiss denied when plaintiffs alleged that zoning of their land was changed from a residential classification permitting one residence per 2.5 acres to a category permitting one residence per 100 acres and plaintiffs' subsequent application for rezoning and approval of a planned unit development was denied];  M. J. Brock & Sons v. City of Davis, supra, 401 F.Supp. 354 [motion to dismiss denied when plaintiff pleaded misleading and encouraging actions by defendants regarding plaintiff's development plans followed by a down-zoning from high density residential to agricultural to a total ban on construction].)

In the few cases where the nature of the alleged “taking” has been the refusal to rezone land that remained zoned as it was when plaintiff acquired it, such as plaintiff has asserted herein, there were additional circumstances before the court that justified not disposing of the case without trial.   In 6th Camden Corp. v. Evesham Tp., Burlington Cty., supra, 420 F.Supp. 709, plaintiff acquired 20 acres, 17.9 of which were zoned for business and 2.1 of which, landlocked with the 17.9, were zoned residential.   Plaintiff planned to construct a shopping center on the entire acreage, but defendants refused to rezone the 2.1.   Plaintiff claimed the 2.1 had been rendered useless and unconstitutionally “taken” by the zoning for residential use.   The court denied a motion to dismiss, even though aware that a mere diminution in value would not prove a “taking.”   The court took judicial notice of a state court opinion that the 2.1 acres could not feasibly be used for the permitted use.   Similarly in Hernandez v. City of Lafayette, supra, 643 F.2d 1188, plaintiff's land had been zoned single family residential for ten years when he requested rezoning to a business or multi-family residential use.   The Court of Appeals, reversing a summary judgment erroneously granted on the defendants' claim of immunity, noted that there were genuine issues of material fact whether the refusal to rezone constituted a taking because of summary judgment evidence that the land was not feasible for the use permitted (adjacent to sewage treatment, flood plain extending across parts of it) and because of questions of good faith in defendants' processing of plaintiff's rezoning application.  (Id., at p. 1200.)

 In the instant case there is no allegation that plaintiff's land is not suited to the uses which are permitted, nor any allegation of governmental action beyond the straightforward adherence to the agricultural zoning which came with the property.   When this modest governmental action, which has deprived plaintiff if not of his property at least of his profit in the amount of $325,000, is measured against the criteria of a “taking” enunciated by the Supreme Court and applied by the lower federal courts, it appears “ ‘to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.’  [Citations].”  (6th Camden Corp. v. Evesham Tp., Burlington Cty., supra, 420 F.Supp. 709, 720, emphasis omitted.)

 The criteria are two:  “․ if the ordinance does not substantially advance legitimate state interests, [citation] or denies an owner economically viable use of his land [citation].”  (Agins v. Tiburon, supra, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106.)   It is plaintiff's burden to prove that the ordinance meets these criteria if a “taking” by the ordinance is to be found.   This is a heavy burden in view of the presumption of validity that attaches to the exercise of the public zoning authorities.  (See Burns v. City of Des Peres (8th Cir. 1976) 534 F.2d 103, 108, cert. den. 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139.)

 The interests of the City of Palmdale in the health and welfare of its citizens would appear to be well served by maintaining open land and low density agricultural land uses in the entire vicinity of the airport and especially in the direct path of the planes' takeoff and approach where plaintiff's property is situated.   There being no allegations by plaintiff to the contrary, we find the A–2 zoning of plaintiff's land to be a reasonable exercise of the police power to protect the community from the excessive noise, air pollution and above average safety hazards that attend the concentration of air traffic in the zoned area.

 Plaintiff claims that the refusal to rezone his land for commercial development denies him the “beneficial” and “only economically feasible” use of his land.   The legal question, however, is whether it denies him “economically viable use” (Agins, supra, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106) within the meaning of that concept as developed in the federal cases.   It is well established that a mere “diminution in value” does not amount to such a denial.  (Goldblatt v. Town of Hempstead, supra, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130;  Hadacheck v. Sebastian (1915) 239 U.S. 394, 408–409, 36 S.Ct. 143, 144–45, 60 L.Ed. 348 [diminution from $800,000 to $60,000 upheld].)  Moreover, “․ the mere fact that the regulation deprives the property owner of the most profitable use of his property is not necessarily enough․”  (United States v. Central Eureka Mining Co. (1958) 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228.)   Indeed, “[f]or there to be a taking the landowner must show he has been deprived of all reasonable uses of his land” (C. F. Lytle Co. v. Clark (10th Cir. 1974) 491 F.2d 834, 838);  that it has been rendered valueless.  (Steel Hill Development, Inc. v. Town of Sanbornton (1st Cir. 1972) 469 F.2d 956, 963, cert. den. 414 U.S. 932, 94 S.Ct. 236, 38 L.Ed.2d 162.)

Whatever conclusions plaintiff may have alleged in his complaint, he has not alleged facts that show that the A–2 zoning denies him all reasonable or “economically viable” uses, as did the plaintiff in Hernandez v. City of Lafayette, supra, 643 F.2d 1188;  he has not alleged that the land is not suited to the uses for which it is zoned.   The ordinance permits any number of uses, such as crops, livestock, animal facilities, which are not only reasonable but valuable and essential to a healthy, diversified community economy.

As analyzed by the standards of the federal “taking” cases, the A–2 zoning of plaintiff's land does not deprive him of the property rights protected in the Fifth and Fourteenth Amendments to the United States Constitution.   No set of facts that plaintiff could prove would entitle him to relief under the federal Civil Rights Act.

The judgment on the pleadings without leave to amend is affirmed.



1.   Paragraphs 13, 15 and 16 alleged, inter alia, that the refusal was for the purpose of devoting the property to public use as a clear zone;  that plaintiff had been deprived of the beneficial and only economically feasible use of his property;  that the City intended a de facto transformation of the property into public property without paying just compensation.   We discount the allegations of motive implicit in these paragraphs on the further ground that “ ‘․ the purpose or motive of the city officials in passing an ordinance is irrelevant to any inquiry concerning the reasonableness of the ordinance․  If the conditions justify the enactment of the ordinance, the motives prompting its enactment are of no consequence.’  (Citation.)”  (Pinheiro v. County of Marin (1976) 60 Cal.App.3d 323, 327–328, 131 Cal.Rptr. 633.)   Similarly, under federal law, motive is irrelevant.  “ ‘․ the Constitution measures a taking of property not by what a State says, or ․ intends, but by what it does.’  (Citations.)”  (San Diego Gas and Electric Co. v. San Diego (1981) 450 U.S. 621, 653, 101 S.Ct. 1287, 1304, 67 L.Ed.2d 551, 573 (dis. opn. Brennan, J.).)   Thus, even if we accepted these allegations of motive as true, they would not bear on our determination of whether the challenged regulation “took” plaintiff's land.

2.   The trial court's consideration of the “outline of evidence as presented by counsel for the plaintiff” was obviously impermissible when deciding the motion for judgment on the pleadings, as the motion is directed to the face of the pleading.  (4 Witkin, Cal.Procedure (2d ed. 1971) p. 2817.)   On review we limit ourselves to examination of the face of the pleading and affirm if the trial court was correct within that proper focus.  (Cf. Friendly Village Community Assn. Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 224, 107 Cal.Rptr. 123.)   No doubt the trial court's consideration of the outline of evidence pertained to its decision whether to grant leave to amend, whether plaintiff could cure by amendment the defects on which the motion would be granted.

3.   42 U.S.C. § 1983 provides:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ․ subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

JAKES, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

SPENCER, P. J., and DALSIMER, J., concur.