thank you may please the court my name is stephanie fanelli and i represent the appellant's in this case clark and carl afraid of this this case presents a shining example of when a private citizen is allowed to sue the government and its agents this case has two facets to it one is a raised judicata issue and the other is whether the freydis is presented sufficient evidence to defeat a summary judgment under that standard regarding the res judicata the district court found that race judicata applied because they were the same claims but they're not in the first federal claim the fray disses sued almost immediately after receiving a decision in the state court that their properties were illegal and they sued for the actions by the county and its agents from two thousand and seven through two thousand and nine when the county was maintaining in asserting that the properties had violations and that they weren't legal living units that was the basis for that first lawsuit and what happened is the federal district court as affirmed by this court said well it's not agree just conduct because it was some potentially arguable basis for interpret in the ordinance the way that the county did and what the county did was it misinterpreted in ordinance so there's no agree just a violation of civil rights the freydis is then found a second lawsuit this lawsuit and what this lawsuit asserts in wait a minute what did they want in the first lawsuit what they wanted well first of all what they wanted in the first lawsuit is that they wanted damages for having having gone through the whole having to ok up through two thousand and nine the argument was that the they had the county who they wanted damages for the county's position that the properties were not lawful and that is somehow different from a claim that the part that the property was  well let me explain its dip to the state court has decided the properties are lawful yes that's already been decided and in fact if you look at the first district court of appeal opinion it mayn't it  does say that those properties are lawful what the what the freydis is wanted they wanted their attorney fees they wanted all of the the expenses that they had gone through from two thousand and seven through two thousand and nine when the county was asserting that the properties were not lawful and so now what they're asking for is the permit in this lawsuit absolutely still to this day the county is asserting that these properties are not lawful they won't grant a permit they will not allow the county records to be changed to reflect that in fact instead of nine hundred seventy two square feet of living space these properties have almost twice that because what the first district court of appeal has affirmed just recently and i asked this court take judicial notice of it was that the properties are in fact lawful by the county continuing to assert that they're not the distinction is this from two thousand and seven through two thousand and nine arguably the county was misinterpreting the ordinance when judge brady made her decision in two thousand and eleven and said oh no there no evidence of violations when the first district just came out with its opinion and said these properties are lawful these are lawful living space i'm sorry  what else do we need we have got county records showing that the property isn't lawful you will hear the county attorney stand up and say i'm assuming because it was in the answering brief these properties are illegal that what the freydis is want in this lawsuit well and actually what the radius is one is a permanent right you didn't want the permanent so that as things go forward into the future that there won't be any issues about anybody coming back and saying that these properties are not lawful whether they want to sell the properties in the future rent them out in the future or anything else to do with these properties is that right that is right that is what they would like and that's still what they don't have and know why you're not simply trying to enforce what the state court ruled under state law that you're entitled to a permit is that you and you are here we are in federal court and we've got all these fancy substantive due process and equal protection and all that but isn't this really the same aren't you isn't this just a continuation of what you were fighting about it's not because now we have a ruling from the state court if i understand your honor's question it is why haven't the phrases just gone into question is why why is it it's any different than what you've already been litigated it's different because they continue to retaliate and the county and its agents continue to reach cali against the fray disses as recently as december of two thousand twelve well after the first lawsuit was filed in in fact it's around the same time as the judgment came down in the district court the freydis went in to get a permit and they were denied they were denied the permit why because the county said the properties are legal now maybe in two thousand and nine arguably a valid argument misinterpretation of the ordinance but in two thousand and twelve i year and a half after judge brady said these properties are legal for the county for its agents to say you don't get a permit that is why we're in federal court because that is the government gone wrong that is the basis for a civil rights lawsuit by a private citizens could they go and they could go in today to to state court presumably but that's not enough because the point is when a government does what this government did that's wrong and that is the basis for a civil rights case that is the basis that was retaliation that was a denial of equal protection anyone else could have gone in there and applied for a permit the county would not even well i think that their damages are the attorney fees for the prior lawsuit as well you know that the freydis is a been battling this for a long time now arguably as i said through two thousand and nine perhaps is counsel you there are many instances where you as a plain of can choose to bring a case in state court as well as federal court and that it's up to the plaintiff decide where you want to file exactly and this is one of those cases your honor this is one of those cases where had if the fracas is let's say they filed suit tomorrow what would they get they would not get full relief because for relief in this case this is the government having done something i think with this court could do with the attendant state claims which were dismissed because the federal claims are dismissed as well is there's a claim for declaratory relief and injunctive relief and i think this court could adjudicate those as part of the federal claims that's what we're the retaliation force yes exactly that the freed us is the claim is that freydis is where we tell the aged against by the county because they stood up for their rights now but the record in terms the retaliation claim the record doesn't reflect that and i'm trying to remember the man's name that innocent mr dennison  knew of the prior lawsuit right there's no evidence he didn't and that's key it's the burden of the moving party on summary judgment to show that there's no tribal issue of fact certainly an inference could be drawn moving party just can't say well they didn't point to anything i mean under so thank you as an unwilling party you have to show some evidence that there is an issue of tribal fact right well that is the standard your honor yes mr denison is the d c d application and permit center manager this isn't a rank and file employee that he did not know who the freydis were in the small county and he didn't assert that he did not know who they were the fact is everyone what do you believe what it was is that he wasn't aware of the prior lawsuit right and so he didn't need in order to succeed on your italian claim you need to show that somebody from the county who was responsible for providing the permit was aware of the prior lawsuit and acted in a way based on that awareness to deny them the permit and i think one can infer that i think a jury can infer that i think that to to get rid of that claim on summary judgment is premature and doesn't recognize the standard which is all reasonable inferences must be drawn in the opposing party i would like to reserve chairman it's for a bottle unless this court has pressing questions  essentially all of the claims that they almost all of the claims that they asserted previously but counsel there's a difference between the prior lawsuit in this one so when the prior lawsuit was filed th was the county's position that under their interpretation of the ordinance these units were unlawful right yes and with this lawsuit plaintiffs are claiming that in spite of notice to the county that these are lawful units the county is refusing to issue them permits correct but that was also the case in the earlier lawsuit the plaintiffs have sought permits which the county has despite extensive investigation determined that the zoning does not allow second units on their properties and the plaintiffs are brought forward no evidence to support their claims and so that the you know the difference what happened in between the two lawsuits is that a judge saying actually no these are unlawful you know i would take issue with that your honor the writ of mandate action sought to have the administrative order imposing fines rescinded and the judge the state court judge held in that matter based on a motion and the administrative record before that court that there was no basis for the county's administrative order and the county when it had responded i submit that that's an entirely different proceeding than what occurred in  freydis one the earlier lawsuit and what occurred here in both these two look federal court litigations there has been extensive evidence provided by the county in principle in the form of the declaration of a rune a bot the principal planner establishing all the  the plaintiffs did not seek permits they did not seek an order allowing them permit in the writ of mandate action that was not even addressed in that action the sole issue was whether there was evidence to support the imposition the administrative order imposed on the fines but i think county in that action so in the administrative action seek to show that the fines religion a minute because these units were unlawful your honor i believe i was not the counsel for it for the county in that matter but i believe yes an effort was made but the record was very very limited these issues have now been lost some in the fray just one and now in fraser's two to where it's apparent what they're claiming and the county has brought forth significant evidence and i think the previous two courts lower courts ruling on this would agree that it supports what the county is saying at least to the extent that no flip federal claims can be made with the one just it's presented here and the counties position has no there was a reasonable basis for the county's decision to not allow these second units and not allow permits in to prosecute the taking the position that they took but but it has been held that these units are not waffle so why is this why are we why aren't they entitled to l action that was previously litigated did not deal with the permits it simply wasn't effort to rescind the mistreated order the court agreed under that limited evidence and record before her that the record did not support the county's order and the county rescinded so i would submit that if the plaintiffs are intent on obtaining permits they have that option available to them still and they have not done it in terms of proceeding with my writ mandate but in counsel though if they were to proceed by written mandate there isn't anything there that would operate and allow them to get attorneys feeds right so they would only get the permit i believe so ok so if they wanted attorneys fees or this litigate at least this litigation so what they've been doing to try to get the permits the only vehicle by which to do that is supporting a federal lawsuit under the statute that would allow them attorneys fees is that correct well they do have an inverse condemnation cost of action  and that is in state court and they would be intitled if they prevail to recover their attorneys fees prosecuting that action ok well why don't they just have a viable due process claim that they've been doing all this and well i would point out that in freydis one the court ruled that the county was not acting arbitrarily and capriciously in that the county did have up until that time well there's ok you know we we would that's over but now to get our permit and you're still saying no i don't believe that the state court river mandate order says what the plaintiffs say it says it's simply ordered that the county rescind the administrative o 't make sense to me why the fines would be rescinded if they weren't that the units were lawful right and i submit that record that's a very limited proceeding there was no testimony taken the order was made on motion is the judgment which was issued four years later compelled to carry due to rescind dating back to nine hundred fifty one so it also did not allow second units further there was no permit ever found allowing a second unit on either of these two properties  and the plaintiffs claim that they had why is your position now any more valid than it was when you said when you put on the administrative fine we did not have the  declaration and testimony of for example a room of pot setting forth what has been offered in for a just one and in for a just two none of that evidence was before the they immediately went and filed for a just one in federal court but had they been pursuing it further there would have been additional hearings before the county and the board of supervisors ultimately if there was an appeal were all of this evidence would have been presented and then it would have gone back to the state court but you didn't answer my question yes so my question was that before there was a determination during the really about whether the fines should or should not be rescinded did the county have the opportunity to present through declarations this all of this information showing that the units were unlawful under the current zoning ordinance i'm sure the county did have an opportunity but i would also say the issues at that time did not were not so all encompassing they related to whether or not there were permits for the improvements that have been made to the downstairs units so this is an evolving issue that took quite some time a matter of almost eighteen months before the administrative hearing was even held before the board supervisors and so i can't your question i'm trying to get at i guess is that during the administrative hearing the county was basically asked to provide justification for the  after a review the board of supervisors came back and said we find that the fines were not properly imposed is that right yes the board found the fines were properly that there was no substantial evidence to support the order imposing the fines correct ok doesn't that in and of itself then say that these units are lawful before the court what was before the court was does that limited record before it was that sufficient to allow the county to create this order imposing fines the court said no that does not need that the evidence did not exist you have to understand this was only relating to the administrative order this was not a full blown trial or hearing or even complaint seeking the type of relief that the plaintiffs are seeking in this case or in fray just one that is why we do not see the evidence and that is why the court ruled the way it did the opinion that was  support the granting of the motion went well beyond that i grant you but if you'll look at the rich it's very limited in it simply says the administrative order must be recent send it the judgment does the same the county went ahead and filed its return saying we have done just that that was the beginning and the end of the writ of mandate action and that's why i do not believe it has the importance that the court may  suspect it has in this particular matter thank you thank you thank you thank you when i was last year i was asked why can't the freydis is just going to state court and get their permits well i think we see why because the county continues to maintain the properties are illegal that's why you go to court you know but but that's they're not if they gave it would need to go to court but that's the government action that is so egregious that is like what's about first case what are we talking well the first is a first for the case the first federal case thank you that was what i understood as well the first federal case was based on the actions the county took prior to the writ of mandate that's why because it was based on the county's actions in asserting before they got a ruling before my client's got a ruling from judge brady that the properties are in fact legal that that whole time the county was maintaining the properties were illegal was wrong what was the action filed after the administrative determination a mistake or it was found within weeks yes yes within weeks after however at that time we alleged actions that took place afterward in fact looks like we'll have more actions because what's going to happen is my client and i don't understand how there's how one could argue that there's a misinterpretation of a court order of a court judgement which is these properties are legal which is now law of the case as a result of the first district court of appeal and notices that the freight is received stated that the unlawful conditions have been abated and no longer exists of the property is that right exactly and i thank you i have written that down to bring up the counties filed recorded notices of abatement the part of the phrases did nothing to their property this is an admission that the properties are legal they can't talk out of both sides of their mouths and that's the problem that's why we're here because the government can't do what this government did it's not allowed under the law and my clients are entitled to their fees for having to suffer through years and years of all of this because the county continues to assert that their properties which is a court has said twice now are legal can't get permits and the last thing that i ask you it was a good year and a half later december two thousand and twelve and this is the first federal suit was filed in july or end of june of two thousand and eleven ok and i asked one more was the county zoning is it had a different argument or what what would you know going on the question is whether the properties are legal that is the question and they were they were the first district has said the properties are in fact illegal that they were permitted for legal occupancy so whether the zoning now says you can't have them is irrelevant thank