                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 27 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DAVE MOLONY; GOLD LEAF                           No. 09-35624
INVESTMENTS, INC.,
                                                 D.C. No. 3:05-cv-01467-MO
              Plaintiffs - Appellees,

  v.                                             MEMORANDUM *

CROOK COUNTY, a political subdivision
of the State of Oregon,

              Defendant - Appellant.



DAVE MOLONY; GOLD LEAF                           No. 09-36005
INVESTMENTS, INC.,
                                                 D.C. No. 3:05-cv-01467-MO
              Plaintiffs - Appellants,

  v.

CROOK COUNTY, a political subdivision
of the State of Oregon,

              Defendant - Appellee.




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
DAVE MOLONY; GOLD LEAF                            No. 09-36089
INVESTMENTS, INC.,
                                                  D.C. No. 3:05-cv-01467-MO
              Plaintiffs - Appellees,

  v.

CROOK COUNTY, a political subdivision
of the State of Oregon,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                         Argued and Submitted May 4, 2011
                                 Portland, Oregon

Before: KOZINSKI, Chief Judge, BEA and IKUTA, Circuit Judges.

A. Trial Issues

       The district court did not err in denying the County’s motions for summary

judgment and judgment as a matter of law (“JMOL”) on Plaintiffs’ state-law taking

claim. Oregon law imposes a finality requirement. W. Linn Corporate Park LLC

v. City of W. Linn, 240 P.3d 29, 38–39 (Or. 2010). However, even if the Planning

Commission’s decision was not final, Oregon courts have recognized that

“[f]utility excuses a landowner from taking steps to ripen a claim when it is shown

that there is no possibility that a viable proposal of any kind will be approved.”

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Murray v. State, 124 P.3d 1261, 1270 (Or. Ct. App. 2005). The head of the three-

person Crook County Court had told Molony that Quail Canyon Road did not

provide legal access and declared that the Crook County Court would “defer[] to

the decision of the planning department.” The letter containing these statements

was also sent to the other two members of the Crook County Court, who raised no

objection to their chief’s stated views. Therefore, “there was very little

likelihood—or no likelihood—that the development would have been approved”

had Plaintiffs appealed to the Crook County Court. Boise Cascade Corp. v. Bd. of

Forestry, 63 P.3d 598, 605 (Or. Ct. App. 2003).

      On the merits, viewing the evidence in the light most favorable to the

verdict, substantial evidence supported a state-law taking violation. In its final

ruling, the Planning Commission concluded that Quail Canyon Road did not

provide legal access. A jury could have found that the County’s decision was

“permanent on its face or so long lived as to make any present economic plans for

the property impractical.” Boise Cascade Corp. v. Bd. of Forestry, 935 P.2d 411,

421 (Or. 1997).

      The district court did not err in denying the County’s motions for summary

judgment and JMOL on Plaintiffs’ federal equal protection claim. Plaintiffs

satisfied “prong-one” ripeness by obtaining a final decision from the Planning


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Commission. See W. Linn Corporate Park LLC v. City of W. Linn, 534 F.3d 1091,

1100 (9th Cir. 2008). Under “prong-two,” Plaintiffs filed a state inverse

condemnation action in state court. Id. On the merits, evidence was presented to

the jury which demonstrated that the County treated similarly situated persons

differently, had animus against Molony, and acted arbitrarily. A reasonable jury

could have found an equal protection violation.

      The County contends the district court erred when it granted Plaintiffs’

motion in limine excluding “testimony and evidence asserting or aiding a ripeness

or exhaustion defense against Plaintiffs’ claims.” However, other than including a

section contending that the error was preserved, the County’s opening brief

contains no argument on this issue. Therefore, the issue is waived. See Sekiya v.

Gates, 508 F.3d 1198, 1200 (9th Cir. 2007); Fed. R. App. P. 28(a)(9)(A).

      The district court did not abuse its discretion by denying the County’s

motion for mistrial. “A new trial should only be granted where the flavor of

misconduct . . . sufficiently permeate[s] an entire proceeding to provide conviction

that the jury was influenced by passion and prejudice in reaching its verdict.”

Settlegoode v. Portland Pub. Sch., 371 F.3d 503, 516–17 (9th Cir. 2004)

(alterations in original) (internal quotation marks omitted). Because the comments

regarding Molony’s military service in Vietnam were made only during Molony’s


                                          4
opening statement, and the County refused an opportunity to have an admonition

given to the jury, the district court did not abuse its discretion by denying the

motion for mistrial. See id.; Kehr v. Smith Barney, Harris Upham & Co., 736 F.2d

1283, 1286 (9th Cir. 1984).

      The district court did not abuse its discretion by permitting evidence that

was not presented to the Planning Commission. Liability was based on the

County’s “course of conduct,” and the expert testimony was highly relevant for

determining whether the County’s conduct would support finding an equal

protection violation.

      The district court did not abuse its discretion by denying the County’s

motion to strike Plaintiffs’ claim for damages and the evidence supporting it. The

County denied that Quail Canyon Road provided legal access on several occasions

prior to the Planning Commission’s decision, and the jury explicitly found it was

the County’s “course of conduct” which resulted in liability. In addition, the

district court properly allowed Dr. Fruits to testify as to damages. The County did

not challenge Dr. Fruits’s expert qualifications or his method for calculating

damages pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

B. Attorneys’ Fee Award

      In its opening brief, the County made no mention of its appeal of the district


                                           5
court’s attorneys’ fee award. Therefore, the County’s arguments are waived. See

Sekiya, 508 F.3d at 1200; Fed. R. App. P. 28(a)(9)(A).

      The district court abused its discretion, in part, by denying all fees between

the original trial date and the rescheduled trial date. The trial was continued at the

pretrial conference held nine days before the original trial date. But for Plaintiffs’

counsel’s expert disclosure errors, counsel would have been entitled to fees for

work performed in the nine days leading up to trial—a period of time with

significant work preparing for trial. Given that the district court’s fee reduction

was not meant to be punitive, Plaintiffs’ counsel should have been awarded fees for

trial preparation work during the nine days before the continued trial date. On

remand, the district court shall award fees for the nine days leading up to the

continued trial date, to the extent these fees would have been incurred regardless of

the continuance and were not already awarded for time spent working during the

nine days before the original trial date.

      AFFIRMED in part; REVERSED AND REMANDED in part. Crook

County shall bear all parties’ costs on appeal.




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