Los Altos El Granada v. City of Capitola ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOS ALTOS EL GRANADA INVESTORS, 
a California limited partnership
dba Castle Mobile Estates,
Plaintiff-Appellant, No. 07-16888
v.  D.C. No.
CITY OF CAPITOLA; CITY OF CV-04-05138-JF
CAPITOLA MOBILE HOME RENT
REVIEW BOARD,
Defendants-Appellees.

LOS ALTOS EL GRANADA INVESTORS, 
a California limited partnership
dba Castle Mobile Estates, No. 07-17074
Plaintiff-Appellee, D.C. No.
v.  CV-04-05138-
CITY OF CAPITOLA; CITY OF JF/PVT
CAPITOLA MOBILE HOME RENT OPINION
REVIEW BOARD,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted
March 12, 2009—San Francisco, California
Filed October 7, 2009
14331
14332 LOS ALTOS EL GRANADA v. CAPITOLA
Before: J. Clifford Wallace, Sidney R. Thomas and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
LOS ALTOS EL GRANADA v. CAPITOLA 14355
COUNSEL
Robert S. Coldren, C. William Dahlin, and Mark D. Alpert
(argued), Santa Ana, California, for the plaintiff-appellant.
John G. Barisone, Santa Cruz, California, and Henry E.
Heater (argued) and Linda B. Reich, San Diego, California,
for the defendants-appellees.
OPINION
BYBEE, Circuit Judge:
Despite clear language from the Supreme Court establish-
ing that “a state court determination may not be substituted,
against a party’s wishes, for his right to litigate his federal
claims fully in the federal courts,” England v. La. State Bd.
14356 LOS ALTOS EL GRANADA v. CAPITOLA
of Med. Exam’rs, 375 U.S. 411, 417 (1964), two California
courts determined that this right to a federal forum was “irrel-
evant” and struck appellant’s clear reservation of its federal
claims from its complaint. The district court then determined
that the actions of the California courts should be given pre-
clusive effect in federal court. Although we agree that we
must give full faith and credit to the state court’s decision to
strike the England reservation from the complaint, we con-
clude that doing so has no effect on the validity of appellant’s
reservation of federal claims. We thus reverse the judgment
of the district court.
I
The complicated procedural history of this case reveals the
sisyphean task that the Supreme Court’s decision in William-
son County Regional Planning Commission v. Hamilton Bank
of Johnson City, 473 U.S. 172 (1985), has created for plain-
tiffs who seek to have their federal takings claims adjudicated
in federal court. After a full complement of administrative
appeals, three California Superior Court decisions, a Califor-
nia Court of Appeal decision, three federal district court deci-
sions, and one prior federal appellate court decision, the
plaintiff in this case assumed that it had properly exhausted its
state law causes of action in state court and would be entitled
to present its unadjudicated federal claims in federal court.
Yet, the district court decided that in the process of exhaust-
ing its state law causes of action the plaintiff had created a bar
to any subsequent assertion of federal claims in federal court.
The protracted legal struggle that is the basis for this appeal
began on March 9, 2000, when appellant Los Altos El Gra-
nada Investors (“Los Altos”), owner of a mobile home park,
“Castle Mobile Estates,” located in the City of Capitola (“the
City”), petitioned the City for license to increase rents on its
mobile home pads from $200 to $500 per month. A 1970s-era
mobile home rent control ordinance provides that mobile
home rents can be increased in only two situations. First, an
LOS ALTOS EL GRANADA v. CAPITOLA 14357
“automatic increase” occurs in the event of an increase in the
Consumer Price Index, and in such a case rent can be
increased by no more than 60 percent of the increase in the
Consumer Price Index. Second, mobile home park owners
may effect a “discretionary increase” in rent to pass through
increased operating costs, capital expenses, and capital
improvements. This process requires that park owners work
with mobile home owners and an arbitrator to determine the
amount of the increase.
Los Altos submitted evidence to the City indicating that the
rent control ordinance was permitting mobile home owners to
sell their homes at a significant premium, essentially transfer-
ring wealth from mobile home park owners to mobile home
tenants.1 Los Altos’s evidence suggested that the market price
for a comparable mobile home pad not subject to rent control
would be around $1200 per month, six times what Los Altos’s
tenants were paying. The City apparently disagreed with the
import of this evidence. After deliberating, the City granted
Los Altos a discretionary rent increase of $5.84 per month.
Los Altos filed two suits in federal court that were eventu-
ally consolidated. See Hillsboro Props. v. City of Capitola,
No. C 01-20543 JF (N.D. Cal. 2001); Los Altos El Granada
Investors v. City of Capitola, No. C 01-20667 JF (N.D. Cal.
1
As the Supreme Court noted in Yee v. City of Escondido, 503 U.S. 519
(1992), “the term ‘mobile home’ is somewhat misleading,” because “[the
homes] are generally placed permanently in parks; once in place, only
about 1 in every 100 mobile homes is ever moved.” Id. at 523. Thus,
“[w]hen the mobile home owner wishes to move, the mobile home is usu-
ally sold in place, and the purchaser continues to rent the pad on which
the mobile home is located.” Id. Los Altos claimed that because the City’s
ordinance prevented it from raising rents on new tenants who had pur-
chased a mobile home already at the park, the existing owner would get
a windfall, since the buyer would be willing to pay a premium to purchase
a rent-controlled pad. Los Altos’s expert evidence supported this hypothe-
sis, asserting that although the book value of mobile homes sold in the
park in the years 1998 and 1999 ranged from $5,632 to $16,445, the actual
sales garnered between $39,500 and $95,000.
14358 LOS ALTOS EL GRANADA v. CAPITOLA
2001). Los Altos alleged both as-applied and facial challenges
to the City’s rent control ordinance—its complaint asked for
relief for violations of the Fifth and Fourteenth Amendments,
and also requested a writ of administrative mandamus. The
City moved to dismiss, arguing that the Supreme Court’s
decision in Williamson required Los Altos to seek (and be
denied) relief in state court first before bringing its claims in
federal court. See 473 U.S. at 192-95. The district court
agreed and dismissed the action, holding that to the extent Los
Altos was asserting facial claims it was barred by the statute
of limitations, and to the extent it was asserting as-applied
claims it needed to first contest those claims in state court.
The district court dismissed Los Altos’s amended complaint
on the same grounds, and we eventually affirmed those dis-
missals. See Los Altos El Granada Investors v. City of Capi-
tola, 97 Fed. App’x 698 (9th Cir. 2004).
In an attempt to ripen its federal claims under Williamson,
Los Altos filed a suit in Santa Cruz Superior Court on July 3,
2002, seeking several types of relief. It sought a declaratory
judgment that the Ordinance, as applied to Los Altos, had
effected a taking of property under the California Constitu-
tion, resulted in a violation of Los Altos’s due process and
equal protection rights under the California Constitution, and
failed to provide Los Altos with a just and reasonable return
under the California Constitution. Los Altos also asserted a
cause of action for inverse condemnation and asked for a writ
of administrative mandamus to overturn the City’s decision
denying Los Altos’s full discretionary rent increase.
In its complaint, Los Altos asserted an England reservation:
it “reserv[ed] for independent adjudication in the federal
courts . . . all federal questions, including but not limited to
any federal Fifth Amendment and Fourteenth Amendment
claims for a taking of property, due process or equal protec-
tion, for adjudication before the United States District Court.”
Los Altos expressly cited England.
LOS ALTOS EL GRANADA v. CAPITOLA 14359
On September 15, 2003, the Santa Cruz Superior Court sus-
tained the City’s demurrer to Los Altos’s causes of action for
declaratory relief and inverse condemnation, holding that to
the extent that these causes of action asserted facial chal-
lenges to the ordinance they were barred by the statute of lim-
itations and the “res judicata/collateral estoppel effect” of the
first district court decision. The court also held that to the
extent these causes of action asserted as-applied challenges,
they were not ripe until Los Altos had completed the process
of requesting a writ of administrative mandamus.2 The Supe-
rior Court also granted the City’s motion to strike Los Altos’s
England reservation from its complaint, holding that the res-
ervation was “irrelevant and not proper in the context of this
case.” The Superior Court failed to explain why the reserva-
tion was “irrelevant.”
Meanwhile, on August 20, 2003, Los Altos had filed a new
action in the district court, re-alleging its federal claims. See
Los Altos El Granada Investors v. City of Capitola, No. C03-
3859 JF (N.D. Cal. 2003). Los Altos argued that it had ade-
quately ripened its state law causes of action under William-
son because the Superior Court had denied its rights to
compensation by sustaining the City’s demurrer. The district
court disagreed and dismissed the action on November 13,
2003, holding that Los Altos had not yet exhausted its state
causes of action and declining to exercise supplemental juris-
diction over the writ petition.
2
California has created its own version of Williamson. See Kavanau v.
Santa Monica Rent Control Bd., 941 P.2d 851 (1997). California requires
plaintiffs to first exhaust their administrative remedies before their takings
causes of action become ripe for adjudication in the state courts. See
County of Alameda v. Superior Court, 34 Cal. Rptr. 3d 895, 900 (Cal. Ct.
App. 2005) (“Thus, under both federal and California law, before a plain-
tiff may establish a regulatory taking, it must first demonstrate that it has
received a final decision from the land use authority regarding application
of the challenged land use regulation to its property.”).
14360 LOS ALTOS EL GRANADA v. CAPITOLA
Back in Santa Cruz Superior Court, the petition for a writ
of administrative mandamus was argued and decided. On
May 25, 2004, the court held a motions hearing in which it
announced its intention to deny the writ petition. Although
Los Altos argued that if the court was denying the writ peti-
tion its state law takings causes of action were no longer
moot, and therefore asked for leave to reassert the state law
inverse condemnation cause of action, the court rejected this
request and stated that “[it] would be a cleaner procedure . . .
to let the park owners then appeal this and have the Appellate
Court determine any aspects of taking and anything else.” The
Statement of Decision, prepared by the City and filed on June
25, 2004, implemented the Superior Court’s oral decision, and
Los Altos filed an appeal to the California Court of Appeal.
On December 3, 2004, after judgment was entered by the
Superior Court, Los Altos also filed another action in the dis-
trict court (the present case). See Los Altos El Granada Inves-
tors v. City of Capitola, No. C04-5138 JF (N.D. Cal. 2004).
The complaint alleged five claims: (1) a Fifth Amendment
regulatory taking claim under Penn Central Transportation
Co. v. City of New York, 438 U.S. 104 (1978), (2) a Fifth
Amendment “private” taking claim, (3) a Fourteenth Amend-
ment equal protection claim, (4) a Fourteenth Amendment
due process claim, and (5) a claim that the taking should be
invalidated for failure to “substantially advance” a legitimate
state interest.
The City filed a motion to dismiss for failure to state a
claim and for lack of subject matter jurisdiction. The district
court granted that motion in part on July 26, 2005, holding
that Los Altos’s “failure to substantially advance” claim was
no longer viable after the Supreme Court’s decision in Lingle
v. Chevron U.S.A., Inc., 544 U.S. 528 (2005). As to the
remaining claims, the district court held that they were now
ripe for purposes of Williamson but concluded that it should
abstain from considering them, under Younger v. Harris, 401
U.S. 37 (1971), until the state appellate court had announced
LOS ALTOS EL GRANADA v. CAPITOLA 14361
its ruling. See Gilbertson v. Albright, 381 F.3d 965, 984 (9th
Cir. 2004) (en banc) (“[W]hen damages are at issue rather
than discretionary relief, deference—rather than dismissal—is
the proper restraint [under Younger].”).
A year later, on May 17, 2006, the California Court of
Appeal reversed the prior judgment of the Santa Cruz Supe-
rior Court in part, and remanded to the Superior Court to
allow Los Altos to state its ripened as-applied state law tak-
ings causes of action. Los Altos El Granada Investors v. City
of Capitola, 43 Cal. Rptr. 3d 434, 456 (Cal. Ct. App. 2006).
The court, however, upheld the Superior Court’s decision to
strike the England reservation, reasoning that because the res-
ervation was made before district court proceedings were filed
and in the context of a Younger abstention rather than an
abstention under Railroad Commission of Texas v. Pullman
Co., 312 U.S. 496 (1941), the court did not err in determining
that an England reservation was irrelevant. Los Altos, 43 Cal.
Rptr. 3d at 452-54.
On September 18, 2006, Los Altos took the remand pro-
vided by the California Court of Appeal and filed an amended
complaint in the Superior Court. The complaint asserted
causes of action for inverse condemnation, a violation of the
equal protection clause of the California Constitution, and a
violation of the due process clause of the California Constitu-
tion. It also renewed Los Altos’s attempt to reserve its federal
claims under England.
The City demurred, and the Superior Court sustained that
demurrer on December 19, 2006. The Superior Court con-
cluded:
[P]laintiff’s first cause of action is barred by
Kavanau v. Santa Monica Rent Control Board, 16
Cal. 4th 761 (1997), because it has been established
that plaintiff is receiving a fair return on its property.
The Court finds that plaintiff’s second cause of
14362 LOS ALTOS EL GRANADA v. CAPITOLA
action for violation of equal protection is a time-
barred facial challenge to the ordinance. The Court
finds that plaintiff’s third cause of action for viola-
tion of procedural due process was originally
brought as part of plaintiff’s administrative writ peti-
tion, but subsequently abandoned both at the writ
hearing and on appeal.
The Superior Court also struck Los Altos’s renewed England
reservation, holding that the earlier decision of the California
Court of Appeal barred the reassertion of that reservation.
After the Superior Court’s decision, Los Altos moved on
November 17, 2006 to lift the stay in the district court action.
The district court lifted the stay on February 26, 2007, after
Los Altos declared that it would not appeal the Superior
Court’s decision. The City moved for judgment on the plead-
ings, arguing that the final judgment in the Superior Court
barred Los Altos’s claims in the district court under the doc-
trines of claim preclusion and issue preclusion. The district
court granted the City’s motion. It held that because “Califor-
nia takings jurisprudence is congruent with federal law . . . the
Superior Court’s adjudication of California takings claims is
equivalent to the adjudication of their federal counterparts,
and the doctrine of issue preclusion also bars the relitigation
of those claims as federal claims.” Because all of Los Altos’s
other constitutional claims could have been litigated before
the Superior Court, the district court held that they were
barred by claim preclusion. Although the district court noted
that a successful England reservation might prevent claim
preclusion, it held that because Los Altos had failed to appeal
the Superior Court’s second striking of the England reserva-
tion, it would give that decision “preclusive” effect as well.
II
Before addressing the merits, we must decide whether the
district court abused its discretion in granting Los Altos’s
LOS ALTOS EL GRANADA v. CAPITOLA 14363
motion for an extension of time to file an appeal. See Pincay
v. Andrews, 389 F.3d 853, 858 (9th Cir. 2004) (en banc).
Judgment was entered in the district court on June 25, 2007.
Thus, the deadline for filing a non-permissive appeal elapsed
after July 25, 2007. See FED. R. APP. P. 4(a)(1)(A). On August
6, 2007, twelve days after this deadline, Los Altos filed a
motion with the district court requesting an extension of time
to file its notice of appeal. Although the City opposed this
motion, the district court granted the request for an extension,
finding that Los Altos’s failure to file a timely appeal was
caused by excusable neglect. The City appealed from this
decision.
[1] Federal Rule of Appellate Procedure 4(a)(1)(A) requires
a party in a civil case to file a notice of appeal with the district
court clerk “within 30 days after the judgment or order
appealed from is entered.” Nevertheless, the rule also allows
a party to move for an extension of time to file a notice of
appeal if two things are true: first, the party files its motion
“no later than 30 days after the time prescribed by this Rule
4(a) expires;” and second, “regardless of whether its motion
is filed before or during the 30 days after the time prescribed
by this Rule 4(a) expires, that party shows excusable neglect
or good cause.” FED. R. APP. P. 4(a)(5)(A). Because Los Altos
filed for an extension of time within the thirty-day window for
filing such a motion, the only question is whether the district
court erred in determining that Los Altos showed excusable
neglect or good cause.
In Pioneer Investment Services Co. v. Brunswick Associates
Ltd. Partnership, 507 U.S. 380 (1993), the Supreme Court
created a four-part test for determining whether an attorney’s
failure to file is caused by excusable neglect. We have
adopted this test for use in interpreting Federal Rule of Appel-
late Procedure 4(a)(5)(A). See Pincay, 389 F.3d at 855-56.
Thus, we analyze “(1) the danger of prejudice to the non-
moving party, (2) the length of delay and its potential impact
on judicial proceedings, (3) the reason for the delay, including
14364 LOS ALTOS EL GRANADA v. CAPITOLA
whether it was within the reasonable control of the movant,
and (4) whether the moving party’s conduct was in good
faith.” Id. at 855. In this case, neither party disputes that the
first and second factors support the district court’s grant of the
motion: no prejudice would have resulted from a grant of the
extension, and the delay was only twelve days. The City
argues, however, that the remaining factors weigh against
granting the extension.
Los Altos’s filings in the district court were quite vague
about why it missed the filing deadline. The declaration of
counsel in charge of calendaring the appeal initially asserted
that his law firm had “an established system for calendaring
court deadlines, which provides for incoming pleadings and
outgoing pleadings to be automatically routed.” In somewhat
contradictory fashion, however, counsel later admitted that
the calendaring system was not entirely automated—he
remarked that the error occurred when “the Court’s decision
on the merits was forwarded by me to my assistant, but I
apparently did not forward the Judgment.” Later, in its reply
brief in support of its motion before the district court, Los
Altos claimed that the error “[was] not one of simple inac-
tion” but a system failure that occurred “because of a change
in personnel.” The reply brief claimed that the calendaring
clerk at the firm never received the judgment “because of a
turnover in that position.” No declarations supporting this
“change in personnel” were attached to the reply brief.
In Pioneer, the Court gave little weight to “upheaval in [a]
law practice” as a compelling reason for a filing delay. 507
U.S. at 398. Additionally, the error at issue here (failing to
attach a document to an email) appears to be entirely within
“the reasonable control of the movant.” See id. at 395. Never-
theless, in Pincay we rejected any sort of “rigid rule” to deter-
mine excusable neglect—instead, we decided that we should
give great deference to the district court’s determination. Pin-
cay, 389 F.3d at 859. The district court is simply “in a better
position than we are to evaluate factors such as whether the
LOS ALTOS EL GRANADA v. CAPITOLA 14365
lawyer had otherwise been diligent, the propensity of the
other side to capitalize on petty mistakes, the quality of repre-
sentation of the lawyers . . ., and the likelihood of injustice if
the appeal was not allowed.” Id.
[2] We cannot conclude that the district court abused its
discretion in determining that counsel’s neglect was in good
faith and excusable. Although the City argues that Los Altos
may have had surreptitious motives for failing to file a timely
notice of appeal, all the evidence before the district court sug-
gests the opposite conclusion—whatever the precise contours
of counsel’s failure to calendar the appeal, there is nothing to
intimate that the failure was not one of mere oversight. Also,
although counsel’s failure to calendar the appeal was based in
part on a mistake within his control, we will defer to the dis-
trict court’s determination that such conduct was excusable.
Thus, we affirm the district court’s decision to permit Los
Altos additional time for filing an appeal.
III
We begin our discussion of the merits of the appeal by not-
ing a fact that has apparently gone unaddressed by every court
analyzing the applicability of Los Altos’s England reserva-
tion: Los Altos submitted not one but two reservations in state
court. It is clear that confusion over the two reservations has
led to confusion over the effect of the reservations.
After being dismissed (with prejudice) from federal court
for failing to satisfy Williamson, Los Altos made its first
England reservation when it filed its first complaint in the
Santa Cruz Superior Court. This reservation was stricken by
the Superior Court as “irrelevant.” While this and other
aspects of that decision were being appealed, Los Altos
attempted to return to federal court, arguing that its claims
were now ripe under Williamson. The district court, however,
stayed the action under Younger pending the state court
appeal. The California Court of Appeal then affirmed the
14366 LOS ALTOS EL GRANADA v. CAPITOLA
striking of the original England reservation on the grounds
that Los Altos’s case had been stayed under Younger—
reasoning that was entirely circular because the district court
had abstained under Younger only because of the pendency of
the state appeal. In other words, the California Court of
Appeal considered the England reservation inappropriate fol-
lowing Younger abstention, but the district court had
abstained under Younger only because the California appeal
was still pending—the Younger abstention followed the
England reservation. On remand to the Superior Court from
the Court of Appeal, Los Altos renewed its England reserva-
tion. The Superior Court then held that the California Court
of Appeal’s decision was res judicata to a reassertion of the
reservation and struck Los Altos’s second reservation.
In sum, Los Altos made two distinct England reservations,
each under different circumstances: Los Altos’s original res-
ervation was made when no federal case was pending; and its
renewed reservation occurred after the district court had
abstained under Younger. Although it is unclear which
England reservation the district court thought was barred by
the preclusive effect of the state court decisions, for the rea-
sons we explain below, both reservations were valid when
made and were not undermined by the subsequent decisions
of the California courts.
A
Los Altos’s original England reservation was valid because
it was made after Los Altos was forced to litigate in state
court by the exhaustion requirements of Williamson. More-
over, even if we give preclusive effect to the Superior Court’s
decision to strike the reservation from Los Altos’s complaint,
the validity of the reservation itself remains intact.
1
In England, the Supreme Court addressed the objection
“that a litigant who has properly invoked the jurisdiction of a
LOS ALTOS EL GRANADA v. CAPITOLA 14367
Federal District Court to consider federal constitutional
claims can be compelled, without his consent and through no
fault of his own, to accept instead a state court’s determina-
tion of those claims.” 375 U.S. at 415 (footnote omitted). The
Court described two scenarios in which a putative federal
court litigant has been forced to proceed in state court before
he can return to federal court. In the one case, the litigant
“freely and without reservation submits his federal claims for
decision by the state courts, litigates them there, and has them
decided there.” Id. at 419. In that case, the litigant “has
elected to forgo his right to return to the District Court.” Id.
In the second scenario, the litigant who is involuntarily in
state court limits his causes of action to issues of state law,
reserving his federal claims for resolution in federal district
court. The Court was sympathetic to the dilemma faced by
those litigants who, having been “shunted from federal to
state courts,” wish to avoid “procedural traps operating to
deprive them of their right to a District Court determination
of their federal claims.” Id. at 418 (footnote omitted). In the
second case, the Court considered that even if a litigant “must
inform [the state] courts what his federal claims are, so that
the state statute may be construed ‘in light of’ those claims,”
the litigant has not waived his right to return to district court.
Id. at 420.
[3] The “uncertainties” of this latter scenario led the Court
to recognize a procedure—commonly referred to as an “En-
gland reservation”—by which a litigant “may readily forestall
any conclusion that he has elected not to return to the District
Court”: the litigant may state on the record that “should the
state courts hold against him on the question of state law, [he
will] return to the District Court for disposition of his federal
contentions.” Id. at 421. “When the reservation has been made
. . . his right to return will in all events be preserved.” Id. at
421-22 (footnote omitted).
The England rule is a salutary one. It preserves “the role of
state courts as the final expositors of state law” as recognized
14368 LOS ALTOS EL GRANADA v. CAPITOLA
by the abstention doctrine, as well as the interests of putative
federal litigants who have the “right . . . to choose a Federal
court where there is a choice.” Id. at 415. Additionally, the
England rule protects “the primacy of the federal judiciary in
deciding questions of federal law.” Id. at 415-16 (footnote
omitted).
Although some courts have attempted to limit the England
reservation to the facts of that case, we have never read the
case so narrowly. In England, the Court addressed a situation
in which (1) the plaintiffs filed first in federal court; (2) the
court abstained under the Pullman doctrine; and (3) the plain-
tiffs subsequently brought suit in state court. See id. at
412-13. Accordingly, some courts have precluded the
England reservation where a litigant files first in state court,
see, e.g., Schuster v. Martin, 861 F.2d 1369, 1374 (5th Cir.
1988); Tarpley v. Salerno, 803 F.2d 57, 59-60 (2d Cir. 1986),
while others have held England inapplicable where a district
court abstains pursuant to Younger rather than Pullman, see,
e.g., Temple of Lost Sheep Inc. v. Abrams, 930 F.2d 178,
182-83 (2d Cir. 1991); Duty Free Shop, Inc. v. Administra-
cion De Terrenos De Puerto Rico, 889 F.2d 1181, 1183 (1st
Cir. 1989).
[4] In Tovar v. Billmeyer, 609 F.2d 1291 (9th Cir. 1979),
however, we rejected an overly constrained approach to
England and held that the reservation would be available even
where “the plaintiff (1) initially seeks relief in state court and
(2) has the opportunity to raise all his claims, both state and
federal, in the state court.” Id. at 1294. We reaffirmed this
holding in United Parcel Service, Inc. v. California Public
Utilities Commission, 77 F.3d 1178, 1183 (9th Cir. 1996),
when we “decline[d] to limit England’s application to cases
where the litigant files first in federal court and is remitted to
state court pursuant to Pullman.” Id. at 1185. We there reiter-
ated:
Where a federal court abstains (or could abstain) and
sends the plaintiffs to state court, or where plaintiffs
LOS ALTOS EL GRANADA v. CAPITOLA 14369
realize that abstention is likely and file a parallel
action in state court, they may be able to preserve a
federal forum for their federal claims by expressly
reserving the issues in state court.
Id. (quoting Clements v. Airport Auth., 69 F.3d 321, 329 n.8
(9th Cir. 1995)) (alterations omitted). Although in United
Parcel Service we acknowledged that the Supreme Court’s
decisions in Allen v. McCurry, 449 U.S. 90 (1980), and Migra
v. Warren City School District Board of Education, 465 U.S.
75 (1984), had “qualif[ied] the role of England reservation in
preclusion jurisprudence,” we reaffirmed our “focus on the
voluntary nature of the litigant’s appearance in state court”
and not on whether “the litigant first files in federal court and
is remitted to state court pursuant to Pullman.” United Parcel
Serv., 77 F.3d at 1185.3
[5] It is clear, therefore, that the validity of Los Altos’s
original England reservation was not undermined by the fact
that no federal court had jurisdiction over the federal ques-
tions at the moment the reservation was asserted. Although
the district court dismissed Los Altos’s claims with prejudice
under Williamson, and although Los Altos could have liti-
gated its federal constitutional claims in state court, Los Altos
plainly retained the right to make an England reservation in
these circumstances. United Parcel Serv., 77 F.3d at 1183;
Tovar, 609 F.2d at 1294.
3
Specifically, in United Parcel Service we held that an England reserva-
tion would forestall claim preclusion where the litigant was “forced to liti-
gate in state court,” 77 F.3d at 1185 (quotation marks omitted), and that
the reservation would only prevent issue preclusion where the litigant did
not “fully and freely litigate its federal claim” in state court, id. at 1187.
Because Williamson ineluctably forces litigants into state court, a proper
England reservation may prevent claim preclusion. See id. at 1186 (citing
Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299, 1303-07 (11th
Cir. 1992)). As we have previously noted, however, the reservation alone
cannot “enable [a litigant] to avoid preclusion of issues actually litigated
in the state forum.” Dodd v. Hood River County (“Dodd II”), 136 F.3d
1219, 1227 (9th Cir. 1998).
14370 LOS ALTOS EL GRANADA v. CAPITOLA
2
Having determined that Los Altos’s original reservation of
claims under England was permissible in this case, we must
confront the primary question on appeal: whether the district
court was correct to give preclusive effect to the Superior
Court’s striking of the reservation as “irrelevant.”
The Constitution instructs the states to give “Full Faith and
Credit . . . to the public Acts, Records, and Judicial Proceed-
ings of every other State.” U.S. CONST. art. IV, § 1. The Con-
stitution also gives Congress the power to determine the
contours of this deference. Id. (“And the Congress may by
general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect
thereof.”). In the course of prescribing such manner, Con-
gress, through the Full Faith and Credit Act, codified at 28
U.S.C. § 1738, extended the recognition of state judgments to
the federal courts. Section 1738 provides that state court “ju-
dicial proceedings . . . shall have the same full faith and credit
in every court within the United States . . . as they have by
law or usage in the courts of such State, Territory or Posses-
sion from which they are taken.”
[6] The Supreme Court has interpreted the Act to require
federal courts “to give the same preclusive effect to state court
judgments that those judgments would be given in the courts
of the State from which the judgments emerged.” Kremer v.
Chemical Constr. Corp., 456 U.S. 461, 466 (1982); see also
Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 523
(1986); Allen, 449 U.S. at 96. We “may not employ [our] own
rules in determining the effect of state judgments, but must
accept the rules chosen by the State from which the judgment
is taken.” Matsushita Elec. Indus. Co. v. Epstein, 516 U.S.
367, 373 (1996) (quoting Kremer, 456 U.S. at 481-82) (inter-
nal quotation marks and alteration omitted). There are pre-
cious few exceptions to this requirement. We need not give a
state court decision preclusive effect, for example, where the
LOS ALTOS EL GRANADA v. CAPITOLA 14371
state court “did not have jurisdiction over the subject matter
or the relevant parties” and the question of jurisdiction was
not litigated in the state court, Underwriters Nat’l Assurance
Co. v. N.C. Life & Accidental Health Ins. Guar. Ass’n, 455
U.S. 691, 704-05 (1982), or if it is clear that a federal statute
contains “an express or implied partial repeal” of § 1738, Par-
sons Steel, 474 U.S. at 523 (quotation marks and citation
omitted).
[7] Applying the test created by § 1738, and absent an
exception, we are required to give full faith and credit to the
California Superior Court’s decision to strike Los Altos’s
England reservation. California Code of Civil Procedure sec-
tion 436 enables a court to, “upon a motion . . . or at any time
in its discretion, . . . [s]trike out any irrelevant, false, or
improper matter inserted in any pleading.” CAL. CODE CIV.
PROC. § 436(a); see also Blickman Turkus, LP v. MF Down-
town Sunnyvale, LLC, 76 Cal. Rptr. 3d 325, 350 (Cal. Ct.
App. 2008) (discussing the scope of section 436). Although it
is “improper for a court to strike a whole cause of action of
a pleading under [section 436],” Quiroz v. Seventh Ave. Ctr.,
45 Cal. Rptr. 3d 222, 241 (Cal. Ct. App. 2006), or to eliminate
a “matter which is essential to a cause of action,” see Clem-
ents v. T. R. Bechtel Co., 273 P.2d 5, 14-15 (Cal. 1954), it
may strike anything else it determines to be irrelevant. See
also White Lighting Co. v. Wolfson, 438 P.2d 345, 355-56
(Cal. 1968). Here, the Santa Cruz Superior Court determined
that Los Altos’s England reservation, for whatever reason,
was irrelevant, and struck the reservation from Los Altos’s
complaint. We do not understand why the reservation was
irrelevant—and no justification was offered—but it is not our
place to question California’s administration of its notice
pleading regime. The Superior Court’s decision was a “judi-
cial proceeding,” and thus section 1738 instructs us to give it
the same effect as it would be given by a California state court
—that is, we do not stand as a court of collateral appeal and
ordinarily cannot review matters of California procedure,
even if we disagree with the state court’s judgment.
14372 LOS ALTOS EL GRANADA v. CAPITOLA
[8] Although we think that the Santa Cruz Superior Court’s
attempt to deprive Los Altos of its choice of fora was a failure
to follow England, we need not decide today whether to rec-
ognize an exception to the Full Faith and Credit Clause for
such jurisdictional circumventions. Even granting full faith
and credit to the Superior Court’s decision to delete Los
Altos’s England reservation from its complaint, the Superior
Court’s action cannot have had any “preclusive” effect on the
claims Los Altos can assert before a federal court, because an
explicit, on the record reservation is not required to preserve
federal claims. In England, the Court noted that a party “may
accomplish [a reservation of federal claims] by making on the
state record the ‘reservation to the disposition of the entire
case by the state courts.’ ” 375 U.S. at 421 (quoting NAACP
v. Button, 371 U.S. 415, 428 (1963)) (emphasis added). Nev-
ertheless, the Court did not specify a form for the reservation
and cautioned that “an explicit reservation is not indispens-
able; the litigant is in no event to be denied his right to return
to the District Court unless it clearly appears that he voluntar-
ily did more than [Government and Civic Employees Organiz-
ing Committee, CIO v. Windsor, 353 U.S. 364 (1957)]
required and fully litigated his federal claims in the state
courts.” Id. Indeed, while the Court remarked that it was
“confident that state courts, sharing the abstention doctrine’s
purpose of ‘furthering the harmonious relation between state
and federal authority,’ [would] respect a litigant’s reservation
of his federal claims for decision by the federal courts,” id. at
421 n.12 (quoting Pullman, 312 U.S. at 501 (internal citation
omitted)), it also provided a backstop for cases like the one
before us in which a state court might mistakenly attempt to
eliminate that right. Specifically, the Court held that “evi-
dence that a party has been compelled by the state courts to
litigate his federal claims there will of course preclude a find-
ing that he has voluntarily done so.” Id.
[9] Although it appears clear that Los Altos did not press
its federal claims in state court, we need not scrutinize the
state court record to determine whether Los Altos may have
LOS ALTOS EL GRANADA v. CAPITOLA 14373
deliberately, incidentally, or accidentally “litigated its federal
claims in the state courts.” Even if Los Altos briefed its fed-
eral takings claims, the Superior Court’s action in striking the
explicit England reservation by itself preserves to us the juris-
diction to hear Los Altos’s federal claims. Specifically, the
Santa Cruz Superior Court’s decision to strike the England
reservation at the earliest opportunity demonstrates that “[Los
Altos was] compelled by the state courts to litigate [its fed-
eral] claims there,” id., and we can conclude that Los Altos
has not voluntarily litigated its federal claims in either the
Santa Cruz Superior Court or the California Court of Appeal.
The state courts were aware from the outset that Los Altos
intended to return to federal court. Whether Los Altos accom-
plished this by asserting its England reservation in its com-
plaint or by advising the court orally or by some other
method, it gave the California courts full notice of its reserva-
tion, and that is all England requires.
B
Although Los Altos’s renewed reservation was made after
the district court had abstained under Younger, this second
assertion of its England rights was also valid because the dis-
trict court did not dismiss the action but deferred it pending
resolution of the decision of the California Court of Appeal.
As with the first reservation, the Superior Court’s decision to
strike the renewed reservation had no effect on its validity.
1
The City argues that the renewed England reservation was
not permissible because by that time the district court had
abstained under Younger rather than Pullman, and that an
England reservation may not follow Younger abstention.
Younger, however, is not a per se bar to the articulation of the
England reservation.
In United Parcel Service and other cases, we stated the
general proposition that “the England reservation is not avail-
14374 LOS ALTOS EL GRANADA v. CAPITOLA
able when a federal court abstains pursuant to Younger,
thereby declining rather than postponing jurisdiction as it
would under Pullman.” 77 F.3d at 1184 n.5; see also Mission
Oaks Mobile Home Park v. City of Hollister, 989 F.2d 359,
362 (9th Cir. 1993), overruled on other grounds by Green v.
City of Tuscon, 255 F.3d 1086 (9th Cir. 2001); Beltran v.
State of Cal., 871 F.2d 777, 783 n.8 (9th Cir. 1988). The rea-
son Younger abstention generally precludes an England reser-
vation is that, unlike in Pullman abstention, under Younger
the federal court dismisses the action because there is nothing
for it to decide. A reservation of federal claims is not avail-
able in the Younger context when “Younger abstention
requires dismissal of the federal complaint” and thus “[t]he
federal plaintiff must submit all claims, including any federal
claims, to the state court.” Beltran, 871 F.2d at 783 n.8 (citing
Gibson v. Berryhill, 411 U.S. 564, 577 (1973)); see also Gib-
son, 411 U.S. at 577 (“Unlike those situations where a federal
court merely abstains from decision on federal questions until
the resolution of underlying or related state law issues . . .
Younger v. Harris contemplates the outright dismissal of the
federal suit, and the presentation of all claims, both state and
federal, to the state courts.”). In essence, our prior opinions
reason that to allow a litigant to reserve federal claims in state
court after a federal court has determined that a state court is
the only proper forum for such claims would allow a litigant
to make an end-run around the federal court’s dismissal order.
[10] Our en banc opinion in Gilbertson v. Albright, 381
F.3d 965 (9th Cir. 2004), however, offered a more nuanced
view of the relationship between Younger and England. In
Gilbertson, we addressed whether Younger abstention applies
to an action for damages under 42 U.S.C. § 1983. See id. at
968. We concluded that it did because “[d]amages suits that
turn on a constitutional challenge to pending state proceedings
implicate the reasons for Younger abstention as much as equi-
table or declarative relief actions because to determine
whether the federal plaintiff is entitled to damages . . . the dis-
trict court must first decide whether a constitutional violation
LOS ALTOS EL GRANADA v. CAPITOLA 14375
has occurred.” Id. at 979. Nonetheless, we noted two funda-
mental differences between damages actions and suits for
declaratory or injunctive relief that may require a different
type of abstention under Younger for litigants seeking com-
pensatory relief. Specifically, because damages actions
request “relief [that] is not discretionary, and [that] may not
be available in the state proceeding,” a federal court should
not dismiss the case under Younger but instead “ent[er] an
order staying the federal action until the state proceeding has
been completed.” Id. at 980. From these differences we con-
cluded that when “damages are sought and Younger principles
apply, it makes sense for the federal court to refrain from
exercising jurisdiction temporarily by staying its hand until
such time as the state proceeding is not longer pending.” Id.
at 981. This procedure would:
allow[ ] the federal plaintiff an opportunity to pursue
constitutional challenges in the state proceeding
(assuming, or course, that such an opportunity is
available under state law), and the state an opportu-
nity to pass on those constitutional issues in the con-
text of its own procedures, while still preserving the
federal plaintiff’s opportunity to pursue compensa-
tion in the forum of his choice.
Id. In other words, because in damages cases there may yet
be something for the federal courts to decide after completion
of the state proceedings, the federal court cannot simply dis-
miss the action and require the plaintiff to assert all of his
claims in the state court.
[11] These principles govern this case. Here, Los Altos
seeks damages, not injunctive relief. The district court—quite
appropriately—did not dismiss under Younger but stayed the
proceedings pending the final decision of the California
courts. That makes this case more like Pullman than Younger,
and brings this case squarely within Gilbertson. Permitting an
England reservation makes additional sense in this case,
14376 LOS ALTOS EL GRANADA v. CAPITOLA
where the district court recognized that it could abstain either
under Younger or Pullman and chose to abstain under Younger.4
As the Supreme Court has recognized, the boundaries
between Younger and Pullman abstention are not well-
defined, and “considerations similar to those that mandate
Pullman abstention are relevant to a court’s decision whether
to abstain under Younger.” Pennzoil Co. v. Texaco, Inc., 481
U.S. 1, 12 n.9 (1987). Having recognized this overlap and
commented that “the right pigeonhole is not crucial,”
Gilbertson, 381 F.3d at 981, we would be remiss to accord the
district court’s terminology dispositive effect when deciding
whether an England reservation is permissible. The mere fact
that a district court abstains under Younger does not require
us to ignore the England reservation, particularly where
Pullman abstention would be equally appropriate. In such cir-
cumstances, nothing in the reservation would inflame “the
tensions inherent in a system that contemplates parallel judi-
cial processes.” Pennzoil, 481 U.S. at 12 n.9. Where a correct
reservation has been made, “[the litigant’s] right to return [to
federal court] will in all events be preserved.” England, 375
U.S. at 421-22.
2
[12] For reasons similar to those discussed in Part III.A.2,
the district court also erred in giving preclusive effect to the
Superior Court’s decision to strike the reassertion of Los
Altos’s England reservation. Although the Superior Court
determined that the intervening California Court of Appeal’s
decision barred the reassertion of the reservation in the Supe-
rior Court, this decision has no effect on the validity of the
reservation. Like the first Superior Court decision striking the
original reservation as “irrelevant,” striking the second
England reservation may have removed it from the complaint,
but it could not affect the fact that the state courts were on
4
The district court’s decision to abstain under Younger rather than Pull-
man has not been appealed and is thus not before us.
LOS ALTOS EL GRANADA v. CAPITOLA 14377
notice that Los Altos was there to adjudicate its state causes
of action only and intended to return to federal court to adju-
dicate its federal claims.
IV
[13] We hold that the district court erred in determining
that the state courts’ decisions to strike Los Altos’s England
reservations meant there was no valid reservation. We reverse
and remand to the district court to determine the effect of a
valid England reservation on the City’s attempt to assert
claim and issue preclusion against Los Altos’s federal claims.
REVERSED in part and REMANDED. The panel will
retain jurisdiction over any future appeals.