Tuesday, October 21, 2008

Mt. Holyoke Homes v. California Coastal Comm'n (Cal. Ct. App. - Oct. 21, 2008)

Sometimes it takes eighteen years before you can get approval to build a home near the coast. Sometimes it takes even longer. Here's proof.

P.S. - I've recently read a couple of opinions, of which this is one, in which the author makes clear that a lot of things we call "waiver" aren't actually waiver at all, since they don't involve the deliberate extinguishment of a known right. Here, Justice Perluss notes that there isn't waiver, but rather asserts estoppel. In non-estoppel contexts, what we often call "waiver" is actually "forfeiture". So, for example, we traditionally say that you "waive" personal jurisdiction by not specially appearing (California) or asserting it in your answer or 12(b)(2) motion (federal court), but what we will often really mean is that you've "forfeited" this defense by neglecting to assert it. I mention this only because (1) I'm as guilty as anyone of this misuse of terminology, and I teach civil procedure for a living, and hence am certain that other people misuse the terms as well, and (2) there is a burgeoning trend in the judiciary, I think, to try to make these distinctions clear. So I thought I'd pass along the message.