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Karen Crane-Mcnab, Bert Crane,And Mary Crane Couchman,Trust Individuals, Karen Crane-Mcnab, LLC; Bert Crane v. County of Merced

April 27, 2011

KAREN CRANE-MCNAB, BERT CRANE,AND MARY CRANE COUCHMAN,TRUST INDIVIDUALS, KAREN CRANE-MCNAB, LLC; BERT CRANE RE: ORCHARDS, L.P.; MARY CRANE COUCHMAN FAMILY PARTNERSHIPL.P.,
PLAINTIFFS,
v.
COUNTY OF MERCED, AND DOES 1 TO 20, DEFENDANTS.



MEMORANDUM AND ORDER MOTIONS TO AMEND FINDINGS, FOR COUCHMAN ; and MARY CRANE NEW TRIAL OR TO ALTER OR AMEND , JUDGMENT, FOR RELIEF FROM JUDGMENT, FOR ATTORNEY'S FEES, AND FOR SANCTIONS

On February 8, 2011, this court entered judgment in favor of defendant after a four-day bench trial. (Docket No. 193.) Plaintiffs now move the court to amend its findings or make additional findings pursuant to Federal Rule of Civil Procedure 52(b), for a new trial or to alter or amend the judgment pursuant to Rule 59, and for relief from judgment due to mistake or inadvertence pursuant to Rule 60. Defendant also moves the court to amend or clarify its findings pursuant to Rule 52(b) and moves for attorney's fees pursuant to 42 U.S.C. § 1988 and sanctions pursuant to Rule 11.

I. Factual and Procedural Background

This action arises out of a landfill operated by defendant that neighbors plaintiffs' land. A Caltrans right of way, which includes Highway 59, runs between the landfill and the Crane property. Plaintiffs alleged that volatile organic compounds ("VOCs") migrated from the landfill onto their property, trash and odor blew from the landfill onto their property, water came through a culvert in the Caltrans right of way onto their property, and debris from creeks allegedly maintained by defendant collected on their property. After a partial grant of summary judgment on several issues of law and fact (Docket No. 153), the court held, following a bench trial, that plaintiffs had failed to prove by a preponderance of the evidence any of their claims, which included (1) inverse condemnation under federal and state law regarding VOC migration, trash, and creek debris; (2) trespass regarding VOC migration; (3) nuisance regarding VOC migration, trash, and odors; (4) negligence regarding VOC migration; (5) negligent failure to warn regarding VOC migration; (6) violation of the Due Process Clause of the Fourteenth Amendment; and (7) declaratory relief. (Feb. 8, 2011, Mem. of Decision (Docket No. 192).)

Plaintiffs have appealed to the United States Court of Appeals for the Ninth Circuit from the judgment on March 7, 2011. (Docket No. 200.) Federal Rule of Appellate Procedure 4 provides:

If a party files a notice of appeal after the court announces or enters a judgment--but before it disposes of any motion listed in Rule 4(a)(4)(A) [including a motion to amend or make additional factual findings under Rule 52(b), to alter or amend the judgment under Rule59, for a new trial under Rule 59, or for relief under Rule 60]--the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.

Fed. R. App. P. 4(a)(4). Thus, this court retains jurisdiction to decide the Rule 52(b), 59, and 60 motions despite plaintiffs' appeal.

Similarly, this court retains jurisdiction over defendant's motions for attorney's fees and sanctions. See United Energy Owners Comm., Inc. v. U.S. Energy Mgmt. Sys., Inc., 837 F.2d 356, 358 (9th Cir. 1988) (district court retained jurisdiction to impose sanctions while appeal was pending); Masalosalo by Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 957 (9th Cir. 1983) (district court retained jurisdiction to award attorney's fees after notice of appeal from decision on merits was filed).

II. Discussion

A. Rules 52(b), 59, and 60

Federal Rule of Civil Procedure 52(b) permits a court to amend findings made after a bench trial. Rule 52(b) provides: "On a party's motion filed no later than 28 days after the entry of judgment, the court may amend its findings--or make additional findings--and may amend the judgment accordingly." Fed. R. Civ. P. 52(b). Motions under Rule 52(b) are primarily designed to correct findings of fact which are central to the ultimate decision; the Rule is not intended to serve as a vehicle for a rehearing. Davis v. Mathews, 450 F. Supp. 308, 318 (E.D. Cal. 1978).

Rule 59(a) of the Federal Rules of Civil Procedure provides that a court may grant a new trial "for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court."*fn1 Fed. R. Civ. P. 59(a)(1)(B). After a non-jury trial, a court may also "open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment." Fed. R. Civ. P. 59(a)(2). Rule 59 does not specify the grounds on which a motion for a new trial may be granted. Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). Rather, the court is "bound by those grounds that have been historically recognized." Id.

Rule 59(e) provides that a court may alter or amend a judgment. Absent "other, highly unusual, circumstances," reconsideration pursuant to Rule 59(e) is appropriate only where

(1) the court is presented with newly discovered evidence; (2) the court committed clear error or the initial decision was manifestly unjust; or (3) there is an intervening change in controlling law. Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

Federal Rule of Civil Procedure 60(a) allows the court to correct, on its own initiative or on the motion of any party, a clerical mistake in a judgment, order, or other part of the record. A court may amend its decision under Rule 60(a) so long as the change is consistent with the court's original intent. Harman v. Harper, 7 F.3d 1455, 1457 (9th Cir. 1993). "The basic distinction between 'clerical mistakes' and mistakes that cannot be corrected pursuant to Rule 60(a) is that the former consist of 'blunders in execution' whereas the latter consist of instances where the court changes its mind . . . ." Blanton v. Anzalone, 813 F.2d 1574, 1577 n.2 (9th Cir. 1987) (quoting United States v. Griffin, 782 F.2d 1393, 1396-97 (7th Cir. 1986)). Rule 60(a) may not be used to correct substantial errors, such as errors of law. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990).

Rule 60(b) allows a court to relieve a party from a final judgment, order, or proceeding for six reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct by the opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; and (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). Mere dissatisfaction with the court's order, or belief that the court is wrong in its decision, are not grounds for relief under Rule 60(b). Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981).

Plaintiffs request thirteen amendments to the court's findings of fact and also ask the court to amend the judgment to award plaintiffs nominal damages, injunctive relief, and declaratory relief. Plaintiffs do not specify the rules under which they make these requests, but refer generally to Rules 52(b), 59, and 60. Defendant also requests one amendment to the findings of fact pursuant to Rule 52(b).

1. Findings of Fact

Plaintiffs request several amendments to the findings of fact that would simply add more background to the court's memorandum of decision without being central to the decision or affecting the judgment. Plaintiffs' proposed amendments include:

(1) the dates the government tort claim and the instant suit were filed, (2) a description of the mitigation measures considered by the County, (3) the disclosure requirements for sellers of contaminated real estate, (4) a more complete description of the testimony by plaintiffs' appraiser, Jeffrey Lien, and a further explanation of why the court did not consider his testimony to be credible, (5) the fact that the County issued a request for proposals for a new gas extraction system, (6) the fact that the County then issued a second request for proposals, (7) the fact that the County asked at trial that the court treat extraction as a subsequent remedial measure, (8) an explanation of the conflict in current scientific knowledge regarding whether methane separates from VOCs, and (9) an explanation of the County's argument that Freon must be present when VOC migration occurs. The addition of the proposed amendments would not change the court's opinion, and the court declines to amend its decision simply to articulate the facts in a way that would be pleasing to plaintiffs.

Plaintiffs and defendant each move for one correction to language in the court's decision that they believe to be incorrect. Plaintiffs believe that the court's description of the location of the various landfill cells was inaccurate.

However, the court's description was based on the evidence presented at trial, and the court does not find it to be inaccurate. Defendant requests that the court amend its findings regarding the ownership and operation of the creeks. The court finds that its language was accurate based on the evidence presented and declines to amend its findings on this point.*fn2

Finally, plaintiffs request that the court find the following facts: (1) the landfill contains many of the same chemicals as those detected on the Crane property, (2) not all VOCs found on the Crane property came from fuel, and (3) there was no evidence of a fuel spill on the Crane property. If plaintiffs would read the court's decision carefully, they would discover that the court in fact discussed these three issues. (See Feb. 8, 2011, Mem. of Decision at 10:18-11:7 (while many of the same chemicals were detected, there was no "fingerprint match"), 11:22-27 (many of the chemicals are found in petroleum, and "the amount found in the soil could have been caused by less than a gallon of petroleum," consistent with vehicles on the highway or the property, not necessarily a fuel spill).)

The court need not address every evidentiary issue or fact in its memorandum of decision. See Nicholson v. Bd. of Educ. Torrance Unified Sch. Dist., 682 F.2d 858, 866 (9th Cir. 1982) ("The test in this circuit as to the adequacy of findings of fact is whether they are explicit enough on the ultimate issues to give the appellate court a clear understanding of the basis of the decision and to enable it to determine the grounds on which the trial court reached its decision."); Westside Prop. Owners v. Schlesinger, 597 F.2d 1214, 1216 n.3 (9th Cir. 1979) ("We do not believe that the district court has an obligation to address explicitly every point raised by the parties.").

It is for the court, not the parties, to prepare its decision, in the language chosen by the court, not the parties. And it is not for the parties to rewrite the court's decision to suit their preferences. See Delia v. City of Rialto, 621 F.3d 1069, 1073 n.2 (9th Cir. 2010) (citing cases disapproving of the practice of courts mechanically adopting the findings of fact and conclusions of law as prepared by counsel); Indus. Bldg. Materials, Inc. v. Interchem. Corp., 437 F.2d 1336, 1339 (9th Cir. 1970) ("This practice has been condemned because of the possibility that such findings and conclusions, prepared by the non-objective advocate, may not fully and accurately reflect the thoughts entertained by the impartial judge at the time of his initial decision."). The court is satisfied that the decision as written is the appropriate expression of its reasoning. The court gave much thought to its opinion, and while the parties may have written the decision differently, for better or worse, the court will deny the parties' motions to the extent that they seek amendments to the findings of fact.

2. Nominal Damages and Injunctive Relief Plaintiffs seek nominal damages and injunctive relief under theories of liability previously rejected by the court: inverse condemnation for trash and nuisance for trash and odor.*fn3

They also seek injunctive relief regarding future VOC migration, surface water, trash, odor, and creek debris without reference to any theory of liability at all.

A plaintiff seeking a permanent injunction must satisfy a four-factor test. "A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would ...


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