Vincent Pastore-v-County of Santa Cruz

Background

Defendants moved to dismiss Vincent Pastore’s Second Amended Complaint. One claim alleged a taking in violation of the Fifth Amendment. The court had previously dismissed the same claim and granted leave to amend only if Pastore could allege that he had applied for and been denied a permit to build a residence on the properties at issue.

The Second Amended Complaint did not add an allegation about a residence permit. It alleged instead that Pastore applied for and was denied electrical and solar permits in 2010. The court stated that it intended to consider those allegations even though they went beyond the scope of its earlier instructions.

Statute of limitations

The court noted that the parties had not addressed the statute of limitations. Based on the face of the new allegations, however, the court stated that a takings claim based on the 2010 permit denials appeared barred by the applicable two-year limitations period. The court explained that claims brought under 42 U.S.C. § 1983 generally use the forum state’s limitations period for personal-injury claims and that California’s period is two years. Pastore filed this lawsuit on April 23, 2015.

Notice and permitted response

The court notified Pastore that it intended to dismiss the takings claim based on the alleged permit denials under Rule 12(b)(6), which permits dismissal for failure to state a legally sufficient claim, because the claim appeared time-barred. The court did not enter that dismissal in this order. Instead, it allowed Pastore to file an opposition memorandum of no more than three pages within 10 days of the order’s entry, no later than May 28, 2024. The response was limited to the statute-of-limitations issue identified by the court.