MOTION TO DISMISS

Appellant moves this Court to dismiss this case (Court Appeal consolidated cases E044802 and E045320) on grounds, first, a constitutional taking was not made and, second, a constitutional payment was not made.

This motion is based upon the attached memorandum of points and authorities, and the files of record of this case, and such other and further evidence as may properly come before this Court at a hearing of this matter.

Pursuant to California Rules of Court, Appellate Rule 8.54, any showing in opposition to this motion shall be served and filed within 15 days after the service of the motion.

Dated: 7 July, 2009 Respectfully submitted

By: ________________________

James Constant, In Pro per

MEMORANDUM

Introduction

This is an eminent domain action in which plaintiff The People of the State of California, acting by and through the California Department of Transportation ("Caltrans" or "State"), seeks to condemn certain real property owned by defendants James and Robert Constant1 in a quick take action pursuant to Code of Civil Procedure ("C.C.P") §1263.1102[2]. The State took possession of the property on 11/19/02 and filed a Notice of Deposit on 11/20/02. See Clerk's Transcript ("CT") 748. A jury trial was held and the courts below determined in favor of the State. No deposit was made in court and no prompt release of payment to appellant was made by the State.

The Proceedings Below

Appellant filed proposed jury instructions (100% damage, no benefits) (CT 180) and, on 6/18/07 because of a rapid increase in land value (CT 745), made a final demand for compensation of $4,112,114 for his ½ interest in the entire 5 acre property plus interest since 11/23/02 the date of possession (CT 460). The trial court refused appellant's jury instructions and adopted the State's jury instructions which called for damage and benefits to the remainder. Based on the 11/23/02 date of possession, the jury rendered its verdict in favor of appellant $547,707 = $390,756 for part taken + $655,646 damage to remainder - $498,695 benefits to the remainder (CT 628). Post verdict motions were filed. The trial court denied appellant's Motion for a New Trial and granted the State's Motion for Judgment Notwithstanding the Verdict ("JNOV") awarding appellant half the JNOV award "for his half interest" in the property (CT 849). Appellant filed a Motion to Set Aside The Judgment which was denied by the trial court.

The court of appeal reversed the judgment in Case E046012 (costs) and affirmed the judgments in Cases E044802 (Non constitutional and constitutional claims) and E045320 (Motion to Dismiss under Section 1268.020). A Petition for Rehearing was denied. The decisions below make just compensation depend on state statutory provisions which appellant contends are error on merits and repugnant to the California and Federal Constitutions. See Petition for Review.

Legal Argument

A constitutional taking has not occurred.

Under the State Constitution, a taking occurs when compensation has first been paid to, or into court for the owner. Immediate possession is authorized upon deposit in court and prompt release to the owner of money determined by the court to be the probable compensation by a jury.

Under the 5th Amendment, a taking occurs when payment is made after trial. Kirby Forest Industries Inc. v. United States (1984) 467 U.S. 1, 17-18 (Kirby). ("A constitutional taking occurs when the owner is finally paid after trial").

A constitutional payment was not made

Art. 1, §19 of the State Constitution requires payment into court and prompt release to the owner of probable compensation determined before trial before taking and, under the 5th Amendment, valuation is preliminary to actual taking.

The Federal constitution also requires that "rapid land value increases between the dates of taking and trial must be compensated for in order to provide just compensation" and a "substantial delay between valuation and payment necessitates procedure for modifying award to reflect value at time of payment", Kirby Forest Industries, Inc. v. United States, 467 U.S. 1,17 (1984).

Thus, under both State and Federal law, the valuation and payment of private property are preliminary to its taking by eminent domain, and rapid land increases and delay in valuation and payment require modifications to reflect value at time of payment. In California's quick action process, the taking of private property is preliminary to its valuation and payment and offers no rules for rapid land increases and delay in payments. The quick action process affords the State a means of acquiring property immediately and affords the owner the right to endless litigation with payment withheld until all appeals have been exhausted, all under color of state authorities and statutory provisions for taking private property in violation of constitutional requirements for just compensation and equal treatment of litigants. Nordlinger v. Hahn, 505 U.S. 1 (1992) ("equal treatment is violated absent a valid policy reason for the disparity between litigants").

Allowing just compensation to depend on State authorities and statutory provisions ascertained by the trial court would be unconstitutional because it gives the trial court powers to decide all issues of when a taking occurs, of vacating just compensation ascertained by a jury by JNOV verdict, and by withholding when payment is to be first paid to, or into court, and prompt release to the owner of money, all in violation of Cal. Const. Art. 1, §19 which expressly confers these powers on a jury. Local rules or procedures must not discriminate against the federal law or affect the availability of a federal right. Davis v. Wechsler, 263 U.S. 22,24 (1923). Petitioner's just compensation cannot be made to depend the State's deposit or JNOV award based on State statutory provisions. Seaboard Air Line Ry. v. U.S. (1923) 261 U.S. 299, 304. State and federal statutory provisions have been invalidated when necessary to ensure just compensation to the owner. Kirby Forest Industries Inc. v. United States (1984) 467 U.S. 1, 17 (Kirby)

Since no constitutional taking has occurred and since no constitutional payment was made, the Court should dismiss the case. A proposed order is attached.

Dated: 7 July, 2009 Respectfully submitted

By: ________________________

James Constant, In Pro per
1603 Danbury Dr
Claremont, CA 91711


CERTIFICATE OF COMPLIANCE WITH RULE OF COURT 8.504(d)(1)

I Certify that, pursuant to California Rule of Court 8.504(d)(1) this brief contains 1,207 words (computer count) which is less than the 4,200 word limit.

Dated: 7 July, 2009

By: _____________________________
James Constant


TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

MOTION TO DISMISS 1,2

MEMORANDUM OF POINTS AND AUTHORITIES 1-10

INTRODUCTION 1

THE PROCEEDINGS BELOW 1

ARGUMENT 6

CONCLUSION9

DECLARATION OF ANDREW H. WILSON IN SUPPORT OF MOTION TO DISMISS APPEAL 1-8

EXHIBITS A - G i

TABLE OF AUTHORITIES

CASES

Supreme Court of California
350 McAllister Street
San Fransisco, CA 94102-4783

People v. State of California

Plaintiff and Respondent S173448 v. (Ct. App. Nos E044802,45320)
(Sup.Ct.No. SCV96961)

James Constant

Defendant and Appellant


James Constant
1603 Danbury Dr, pro per Claremont, CA 91711
909 624 1801

constantrcs@cs.com


PROOF OF SERVICE BY MAIL

I am over the age of 18 and not a party to the action. I am a resident of the county where the mailing occurred. My residence is: 1603 Danbury Dr, Claremont, California.

I served a copy of the following documents:

by placing a true copy of each document in the United States mail, in a sealed envelope with postage fully prepaid as follows:

A. Date of deposit: 7 July, 2009
B. Place of deposit: Claremont, California
C. Addressed as follows:

Eric Fleetwood, Esq. Superior Court of California
Caltrans Legal Division County of San Bernardino S35

100 South Main Street, Suite 1300 303 West Third Street
Los Angeles, CA 90012-3702 San Bernardino, CA 92415

Court of Appeals 4th Div 2
3389 12th Street
Riverside, CA 92501

I declare under penalty of perjury that the foregoing is true and correct and that the declaration is executed on 7 July, 2009 at Claremont, California.

_____________________________
Argerey Constant

Supreme Court of California
350 McAllister Street
San Fransisco, CA 94102-4783

People v. State of California

Plaintiff and Respondent S173448 v. (Ct. App. Nos E044802,45320)
(Sup.Ct.No. SCV96961)

James Constant

Defendant and Appellant


[PROPOSED] ORDER

Based upon the motion, the memoranda of points and authorities filed in support thereof and opposition thereto, including all items and citations thereto, the Court hereby rules as follows:

THE MOTION IS GRANTED. The Court :

1. INVALIDATES state statutory provisions and dismisses consolidated Cases E044802 and E045320;

2. Declares that the quick action process deprives appellant of the just compensation provisions of the Federal and State Constitutions and of the equal treatment provision of the Constitution;

3. Declares that under California's Constitution the trial court lacks power to decide all issues of just compensation;

4. Declares that appellant James Constant is the sole remaining owner with 100% interest in the subject property and claimant for the payment of just compensation for the taking by State of the subject property;

5. Orders the State of California to reinstate the subject property to its prior condition, no later than three (3) months from the date of this order;

6. Orders the State of California to pay appellant annual interest of 10% x $8,224,228 = $822,422 for his 100% interest in the entire 5 acre property (100% damage, no benefits), as just compensation and damages for the temporary taking of the subject property between 11/20/02, the date of commencement of the action, and the date the property reverts to its prior condition;

7. Orders State of California to pay appellant's claims of mandated statutory costs in the trial and appeal courts;

8. Orders State of California to pay appellant's attorney's fees, if any, in the trial and appeal courts; and

9. Orders a monetary sanction of $ _______________ pursuant to C.C.P. §128.7(d) "for violation of subdivision (b) . . . sufficient to deter repetition of this conduct [by State] or comparable conduct by others similarly situated".

This court retains jurisdiction over all matters in this order until the State of California files a letter of satisfaction duly executed by appellant.

DATED _______________ ______________________________



1 Robert Constant having filed a settlement of his claim with the State before trial has been dismissed from this action.

2 All further statutory references are to the Code of Civil Procedure unless otherwise indicated