No.

24-

In the
Supreme Court of the United States

GHP MANAGEMENT CORPORATION, et al.,

Petitioners,

v.

CITY OF LOS ANGELES, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Douglas J. Dennington
Counsel of Record
Jayson A. Parsons
Rutan & Tucker, LLP
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
(714) 641-5100
[email protected]

Counsel for Petitioners

130470

A
(800) 274-3321 • (800) 359-6859
 i

QUESTION PRESENTED
In March 2020, the City of Los Angeles adopted
one of the most onerous eviction moratoria in the
country, stripping property owners like Petitioners of
their right to exclude nonpaying tenants. The City
pressed private property into public service, foisting
the cost of its coronavirus response onto housing
providers to avoid expensive and less expedient—but
constitutional—means to help those in need. In doing
so, the City in effect imposed and transferred to
defaulting tenants an exclusive easement in the
private property of others without paying for it. By
August 2021, when Petitioners sued the City seeking
just compensation for that physical taking, back rents
owed by their unremovable tenants had ballooned to
over $20 million. The moratorium concluded in 2024.
Relying on a mobile home rent control case from
this Court, Yee v. City of Escondido, the Ninth Circuit
affirmed dismissal of Petitioners’ complaint because
they “voluntarily opened” their properties to tenants
in the first instance and thus could never state a
physical takings claim against the City’s law, drastic
as it was. The Federal and Eighth Circuits disagree.
In Darby Development Co. v. United States and
Heights Apartments, LLC v. Walz, both courts held Yee
inapposite and validated identical claims because
moratoria like the City’s deprive owners of the right to
exclude akin to Cedar Point Nursery v. Hassid.
The question presented is:
Whether an eviction moratorium depriving
property owners of the fundamental right to exclude
nonpaying tenants effects a physical taking.
 ii

PARTIES TO THE PROCEEDINGS

GHP Management Corporation; 918 Broadway
Associates, LLC; LR 9th & Broadway, LLC; Palmer
Temple Street Properties, LLC; Palmer/City Center II;
Palmer Boston Street Properties I, LP; Palmer Boston
Street Properties II, LP; Palmer Boston Street
Properties III; Bridewell Properties, Limited; Palmer
St. Paul Properties, LP; Palmer/Sixth Street
Properties, L.P.; Figter Limited; Warner Center
Summit Ltd.; and Palmer/Third Street Properties,
L.P., were the plaintiffs and appellants in all
proceedings below.
The City of Los Angeles was the defendant and
appellee in all proceedings below.
Alliance of Californians for Community
Empowerment Action, Strategic Actions for a Just
Economy, and Coalition for Economic Survival were
intervenor-defendants and intervenor-appellees in the
proceedings below.

CORPORATE DISCLOSURE STATEMENT

Petitioner GHP MANAGEMENT
CORPORATION is a California corporation, has no
parent corporation and is not a publicly traded
corporation.
Petitioner 918 BROADWAY ASSOCIATES,
LLC, a Delaware limited liability company, is owned
in part by Palmer Broadway, L.P., and also in part by
LR Broadway Holdings, LLC, and issues no shares.
Petitioner LR 9TH & BROADWAY, LLC, a
California limited liability company, is owned in part
 iii

by Palmer Broadway, L.P., and also in part by L&R

Investment Company, and issues no shares.
Petitioner PALMER TEMPLE STREET
PROPERTIES, LLC, a California limited liability
company, is owned in part by Da Vinci Apartments,
LLC, and issues no shares.
Petitioner PALMER/CITY CENTER II, a
California limited partnership, issues no shares.
Petitioner PALMER BOSTON STREET
PROPERTIES I, LP, a Delaware limited partnership,
issues no shares.
Petitioner PALMER BOSTON STREET
PROPERTIES II, LP, a Delaware limited partnership,
is owned in part by Palmer Boston Street Properties
II, Inc., a California corporation, and issues no shares.
Petitioner PALMER BOSTON STREET
PROPERTIES III, a California limited partnership, is
owned in part by Orsini III, LLC, a Delaware limited
liability company, and issues no shares.
Petitioner BRIDEWELL PROPERTIES,
LIMITED, a California limited partnership, is owned
in part by Pasadena Park Place, LLC, a Delaware
limited liability company, and issues no shares.
Petitioner PALMER ST. PAUL PROPERTIES,
LP, a Delaware limited partnership, is owned in part
by Piero Properties, Inc., a California corporation, and
issues no shares.
Petitioner PALMER/SIXTH STREET
PROPERTIES, L.P., a California limited partnership,
is owned in part by Piero Properties II, LLC, a
 iv

Delaware limited liability company, and issues no

shares.
Petitioner FIGTER LIMITED, a California
Limited Partnership, is owned in part by Figter, Inc.,
a California corporation, and issues no shares.
Petitioner WARNER CENTER SUMMIT,
LTD., a California Limited Partnership, is owned in
part by Summit Warner Center Apartments, LLC, a
Delaware limited liability company, and also in part
by Palmer-Warner Center, LTD., a California limited
partnership, and issues no shares.
Petitioner PALMER/THIRD STREET
PROPERTIES, L.P., a California limited partnership,
is owned in part by Visconti Apartments, LLC, a
Delaware limited liability company, and issues no
shares.
Other entities holding interests in Petitioners
include Malibu Consulting Corp., Palmer/City Center
II, Inc., and Palmer Boston Street Properties, I, Inc.,
each a California corporation that issues no shares
except to principals of the firm.
No publicly traded company holds shares in any
of the corporations or entities listed in this statement.

RELATED PROCEEDINGS
GHP Mgmt. Corp. v. City of Los Angeles, No. 23-
55013, 2024 WL 2795190 (9th Cir. May 31, 2024).
GHP Mgmt. Corp. v. City of Los Angeles, No. 2:21-cv-
06311-DDP-JEM, 2022 WL 17069822 (C.D. Cal. Nov.
17, 2022).
 v

TABLE OF CONTENTS
Page
QUESTION PRESENTED.......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

CORPORATE DISCLOSURE STATEMENT ........... ii

RELATED PROCEEDINGS ......................................iv

TABLE OF CONTENTS ............................................. v

TABLE OF APPENDICES....................................... vii

TABLE OF AUTHORITIES .................................... viii

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

CONSTITUTIONAL PROVISION AND

ORDINANCE AT ISSUE ....................................... 1

INTRODUCTION ........................................................ 3

STATEMENT OF THE CASE .................................... 6

A. The City of Los Angeles enacted one of the

most severe eviction moratoria in the country
effectively banning evictions for nonpayment
of rent, thereby compelling owners of private
property to provide almost unconditional
public housing ................................................... 6
 vi

B. Petitioners are only some of the thousands of

housing providers that were prevented for
years from removing nonpaying tenants by
the City’s eviction moratorium....................... 10

C. Proceedings Below .......................................... 10

REASONS FOR GRANTING THE PETITION ....... 14

A. Certiorari is needed to resolve the split

between the Ninth Circuit applying Yee on one
hand, and the Federal and Eighth Circuits
applying Cedar Point on the other, to physical
takings claims against eviction moratoria .... 14

B. The Ninth Circuit falls on the wrong side of

the split via its expansive and repeated
misreading of Yee ............................................ 19

C. Yee’s “voluntary principle” is unsound, and

this Court should use this opportunity to
limit it ............................................................. 24

D. This case presents a clean vehicle to check the

government’s power to take private property
without paying for it ....................................... 27

CONCLUSION .......................................................... 30
 vii

TABLE OF APPENDICES
Page
APPENDIX A — MEMORANDUM OF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT, FILED MAY 31, 2024 ........................ 1a

APPENDIX B — ORDER GRANTING MOTIONS TO

DISMISS OF THE UNITED STATES DISTRICT
COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA, FILED NOVEMBER 17, 2022 ... 7a

APPENDIX C — JUDGMENT OF DISMISSAL OF

THE UNITED STATES DISTRICT COURT FOR
THE CENTRAL DISTRICT OF CALIFORNIA,
FILED DECEMBER 29, 2022 ........................... 23a

APPENDIX D — PLAINTIFFS’ NOTICE OF INTENT

NOT TO FILE AN AMENDED COMPLAINT,
UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA, FILED
DECEMBER 8, 2022 .......................................... 25a

APPENDIX E — COMPLAINT IN THE UNITED

STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA, FILED AUGUST 4,
2021 .................................................................... 27a

APPENDIX F — RELEVANT STATUTORY

PROVISIONS ..................................................... 63a

APPENDIX G — COURT ORDER OF THE

SUPERIOR COURT OF CALIFORNIA, COUNTY
OF LOS ANGELES, FILED APRIL 15, 2022 ... 72a
 viii

TABLE OF AUTHORITIES

Cases: Page(s)
Alabama Ass’n of Realtors v.
Dep’t of Health & Hum. Servs.,
594 U.S. 758 (2021) .......................................... 4, 24
Apartment Ass’n of Los Angeles Cnty., Inc. v.
City of Los Angeles,
500 F. Supp. 3d 1088 (C.D. Cal. 2020) ................ 12
Armstrong v. United States,
364 U.S. 40 (1960) ................................................ 30
Bols v. Newsom,
No. 22-56006, 2024 WL 208141 (9th Cir.
Jan. 19, 2024) ....................................................... 15
Cal. Bldg. Indus. Ass’n v. City of San Jose,
351 P.3d 974 (Cal. 2015) ...................................... 11
Cedar Point Nursery v. Hassid,
594 U.S. 139 (2021) ............... 3, 4, 5, 12, 14, 15, 16,
17, 18, 19, 22, 23, 24, 26, 28
Darby Dev. Co. v. United States,
112 F.4th 1017 (Fed. Cir. 2024) .......... 5, 16, 17, 19,
20, 21, 22, 23, 28
El Papel, LLC. v. City of Seattle,
No. 22-35656, 2023 WL 7040314
(9th Cir. Oct. 26, 2023) ............................ 15, 28, 29
FCC v. Fla. Power Corp.,
480 U.S. 245 (1987) .................................. 13, 21, 22
Gonzales v. Inslee,
535 P.3d 864 (Wash. 2023) ...................... 19, 28, 29
 ix

Heights Apartments, LLC v. Walz,

30 F.4th 720 (8th Cir. 2022) .................... 14, 17, 18
Kaiser Aetna v. United States,
444 U.S. 164 (1979) .............................................. 19
Knick v. Township of Scott,
588 U.S. 180 (2019) .............................................. 29
Lindsey v. Normet,
405 U.S. 56 (1972) .......................................... 10, 25
Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528 (2005) .............................................. 29
Loretto v.
Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982) .................. 4, 19, 21, 23, 24, 28
Penn Central Transp. Co. v. City of New York,
439 U.S. 883 (1978) .............................................. 11
Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922) ................................................ 3
Sheetz v. County of El Dorado,
601 U.S. 267 (2024) .............................................. 23
St. Joseph Stock Yards Co. v. United States,
298 U.S. 38 (1936) ................................................ 22
Yee v. City of Escondido,
503 U.S. 519 (1992) .......... 4, 5, 6, 12, 13, 14, 15, 16
17, 19, 20, 21, 22, 23, 26, 27
Statutes
U.S. CONST. amend. V ................................ 1, 3, 11, 30
28 U.S.C. § 1254(1)..................................................... 1
28 U.S.C. § 1331 ....................................................... 10
 x

28 U.S.C. § 1367(a)................................................... 10
42 U.S.C. § 1983 ....................................................... 12
42 U.S.C. § 1988 ....................................................... 12
CAL. CIV. CODE § 798.74 ........................................... 20
CAL. PENAL CODE § 602(o) ........................................ 25
L.A., CAL., MUN. CODE ch. IV, art. 14.6,
§ 49.99.2(A) (2024) ........................... 1, 6, 7, 8, 9, 20
L.A., CAL., MUN. CODE ch. IV, art. 14.6,
§ 49.99.2(B) ....................................................... 7, 20
L.A., CAL., MUN. CODE ch. IV, art. 14.6,
§ 49.99.2(C) ....................................................... 7, 20
L.A., CAL., MUN. CODE ch. IV, art. 14.6,
§ 49.99.4.................................................................. 7
L.A., CAL., MUN. CODE ch. IV, art. 14.6,
§ 49.99.5 ................................................................. 6
L.A., CAL., MUN. CODE ch. IV, art. 14.6,
§ 49.99.6.................................................................. 7
L.A., CAL., MUN. CODE ch. IV, art. 14.6,
§ 49.99.7.................................................................. 8
L.A., CAL., MUN. CODE ch. IV, art. 14.6,
§ 49.99.8.................................................................. 8
Other Authorities
Gerald S. Dickinson, Federalism, Convergence,
and Divergence in Constitutional Property, 73 U.
MIAMI L. REV. 139 (2018) ..................................... 18
Richard A. Epstein, Yee v. City of Escondido: The
Supreme Court Strikes Out Again, 26 Loy. L.A. L.
Rev. 3 (1992) ......................................................... 27
 xi

Lee Anne Fennell, Escape Room: Implicit Takings

After Cedar Point Nursery, 17 DUKE J. OF CONST.
L. & PUB. POL’Y 1, 15–16 (2022)........................... 27
Sup. Ct. R. 30.1 ........................................................ 14
 1

PETITION FOR A WRIT OF CERTIORARI

Petitioners GHP Management Corporation, et
al. respectfully petition for a writ of certiorari to
review the judgment of the United States Court of
Appeals for the Ninth Circuit.
OPINIONS BELOW
The opinion of the court of appeals (App. 1a–6a)
affirming the district court can be found at 2024 WL
2795190. The decision of the district court (App. 7a–
22a) dismissing Petitioners’ claims can be found at
2022 WL 17069822.
JURISDICTION
The Ninth Circuit issued its opinion on May 31,
2024. App. 1a. Justice Kagan extended the time to
file a petition for a writ of certiorari to October 13,
2024, with additional extension pursuant to SUP. CT.
R. 30.1. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL PROVISION AND
ORDINANCE AT ISSUE
The Fifth Amendment to the United States
Constitution provides in relevant part, “nor shall
private property be taken for public use, without just
compensation.”
The City of Los Angeles’s eviction moratorium
provided at the time of filing the complaint:1

1 The ordinance at issue is reprinted in full at App. 63a–71a.

While this case was pending appellate review, the ordinance was
amended to reflect the end of the “Local Emergency Period.” See
L.A., CAL., MUN. CODE ch. IV, art. 14.6, § 49.99.2 (2024)
 2

A. During the Local Emergency Period and for

12 months after its expiration, no Owner shall
endeavor to evict or evict a residential tenant for non-
payment of rent during the Local Emergency Period if
the tenant is unable to pay rent due to circumstances
related to the COVID-19 pandemic. These
circumstances include loss of income due to a COVID-
19 related workplace closure, child care expenditures
due to school closures, health-care expenses related to
being ill with COVID-19 or caring for a member of the
tenant’s household or family who is ill with COVID-
19, or reasonable expenditures that stem from
government-ordered emergency measures. Tenants
shall have up to 12 months following the expiration of
the Local Emergency Period to repay any rent
deferred during the Local Emergency Period. Nothing
in this article eliminates any obligation to pay lawfully
charged rent.

(amendments effective January 27, 2023). This petition will refer

to the ordinance as it was adopted at the time of filing the
complaint in August 2021 unless otherwise noted.
 3

INTRODUCTION
This petition presents an important question
concerning limits to the government’s power to take
private property without paying for it, and is one in
which several courts of appeals are in sharp divide:
whether eviction moratoria that deprive property
owners of the right to exclude nonpaying tenants effect
a physical taking necessitating payment of just
compensation.
Over the last century, this Court has routinely
affirmed that private property ownership, and the
legal system’s protection of it, is fundamental to social
order. See, e.g., Cedar Point Nursery v. Hassid, 594
U.S. 139, 147 (2021). Recognized protections are
broad. Absent just compensation, the government
cannot take title to private property. U.S. CONST.
amend. V. The government cannot regulate its use in
ways that, in the enduring words of Justice Holmes,
go “too far.” Pennsylvania Coal Co. v. Mahon 260 U.S.
393, 415 (1922). And—relevant here—the
government cannot conscript private property through
physical occupation or authorize others to do so, at
least without paying the owner for the privilege.
Cedar Point, 594 U.S. at 152–53.
Even so, the City of Los Angeles, like many
other cities and states around the country, effectively
deprived property owners within its jurisdiction of the
fundamental right to exclude others from private
property. The reasons for doing so were putatively
public; faced with the spread of coronavirus, the City
hastily confected a prohibition on owners evicting
nonpaying tenants via the state’s unlawful detainer
laws.
 4

This prohibition lingered for years and lured

hundreds of thousands of tenants into moral hazard,
each often racking up tens of thousands of dollars in
back rents that, in reality, will never be repaid.
Petitioners alone were owed over $20 million by
unremovable tenants in August 2021 when suit was
brought against the City while the moratorium was
still in effect. The moratorium finally concluded in
January 2024.
Observing that Petitioners’ nonpaying tenants
could not be removed as a direct consequence of the
City’s eviction moratorium, Petitioners argued in the
district court that the moratorium constituted a
physical taking necessitating the payment of just
compensation under cases like Cedar Point, but
otherwise did not question the policy’s wisdom and did
not seek to enjoin it. Their claim was bolstered by this
Court’s remarks affirmatively linking the federal
government’s eviction moratorium with the lodestar
case for physical takings: “preventing [owners] from
evicting tenants who breach their leases intrudes on
one of the most fundamental elements of property
ownership—the right to exclude.” Alabama Ass’n of
Realtors v. Dep’t of Health & Hum. Servs., 594 U.S.
758, 765 (2021) (citing Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419 (1982)).
The district court dismissed the complaint on
the City’s motion, holding that because Petitioners
initially invited the tenants via a lease, that alone
would forever defeat a physical takings claim as a
matter of law, citing Yee v. City of Escondido, 503 U.S.
519 (1992). The Ninth Circuit affirmed.
 5

But not all courts agree. In fact, the Ninth

Circuit is of the minority view so far as federal
appellate courts are concerned. Had Petitioners been
situated to bring suit in either the Federal or Eighth
Circuits, this case would have proceeded to discovery
and trial. Relying on Cedar Point, the Federal Circuit
held that a physical takings claim was stated against
the federal government’s eviction moratorium for
depriving the plaintiffs there of the right to exclude.
See Darby Dev. Co. v. United States, 112 F.4th 1017,
1034–37 (Fed. Cir. 2024). “Yee, meanwhile, is
distinguishable and does not control here.” Id. at
1035. The Eighth Circuit holds likewise. See Heights
Apartments, LLC v. Walz, 30 F.4th 720, 732–33 (8th
Cir. 2022).
With a clear circuit split on a single and
important constitutional question, it is time for clarity
on the answer.
This petition does not claim that the City’s
eviction moratorium augurs a slippery slope of worse
things to come. This is because we have already
tumbled to the bottom. It is hard to imagine a more
drastic restriction that is not plainly a taking—and
the City’s moratorium proved to be one of the most
severe in the country. Whether Petitioners are
entitled to a particular amount of compensation is a
matter for another day, but Petitioners cannot even
make it past the courthouse doors to ask the question
if the Ninth Circuit is to be believed.
Make no mistake—while this case comes
garbed in pandemic-era trappings, it has little to do
with the coronavirus. Rather, the pandemic served
only as a catalyst for an unprecedented expansion of
 6

power in which local electeds arrogated the means to

press private property into public service without
paying for it. The only grounds claimed for such
sweeping authority? Yee. Nothing more.
And certainly not the Constitution.
The petition should be granted.
STATEMENT OF THE CASE
A. The City of Los Angeles enacted one of the
most severe eviction moratoria in the
country effectively banning evictions for
nonpayment of rent, thereby compelling
owners of private property to provide
almost unconditional public housing.
On March 27, 2020, the Los Angeles City
Council enacted an ordinance imposing a moratorium
on most all evictions. See App. 47a–48a (¶¶ 40–43),
63a. The eviction moratorium was signed by Mayor
Eric Garcetti on March 31, 2020, but retroactively
applied to “nonpayment eviction notices, no-fault
eviction notices, and unlawful detainer actions based
on such notices, served or filed on or after the date on
which a local emergency was proclaimed.” App. 70a
(§ 49.99.5). The eviction moratorium was to remain in
effect for the duration of the indefinite “Local
Emergency Period,” which ran from March 4, 2020 to
the end of the emergency as declared by the Mayor.
App. 66a–67a (§§ 49.99.1(C), 49.99.2(A)).
The City’s eviction moratorium prohibited
property owners from terminating tenancies based on
(1) a tenant being “unable to pay rent” due to the
coronavirus; (2) any “no-fault” reason for termination;
 7

(3) certain lease violations relating to unauthorized

occupants, unauthorized pets, and nuisance; and (4)
the Ellis Act, a state law that otherwise allows
housing providers to exit the rental market. App. 66a–
67a, 69a (§§ 49.99.2(A)–(C), 49.99.4).
The eviction moratorium provided that owners
could not “endeavor to evict” any tenant with such an
inability to pay, in addition to providing that tenants
could assert an affirmative defense to an unlawful
detainer action on those grounds. App. 66a–67a, 70a
(§§ 49.99.2(A), 49.99.6). The law’s provision of an
affirmative defense was particularly troublesome
because the ordinance did not require tenants to offer
any evidence at all regarding their purported inability
to pay. See App. 65a–66a, 70a (§§ 49.99.1(B)
(providing in triple-negative fashion that evictions are
prohibited where an owner “lacks a good faith basis to
believe that the tenant does not enjoy the benefits of
this article,” but otherwise not requiring any effort by
the tenant to show protections were legitimately
asserted), 49.99.6 (providing simply: “Tenants may use
the protections afforded in this article as an affirmative
defense in an unlawful detainer action.”). Thus, it was
in substance an irrebuttable defense.2

2 The City argued below that tenants would eventually need to

prove their inability to pay before an unlawful detainer court.
This is illusory. The moratorium provided no definition of what
constitutes an inability to pay, so that inquiry would boil down to
taking tenants at their word. At best, it would leave it to wildly
varying judgment calls by unlawful detainer courts. Further, it
is unlikely that owners would file, and likely did not file, unlawful
detainers in the first place due to risk of liability to the tenant for
“endeavoring to evict” them, explained below.
 8

Housing providers who violated the

ordinance—e.g., by “endeavoring to evict” a tenant—
were subject to administrative penalties and between
$10,000 to $15,000 in civil liability directly to the
nonpaying tenant, along with payment of the tenant’s
attorney’s fees and costs. App. 70a–71a
(§§ 49.99.7, 49.99.8). This presented a vexing problem
for property owners like Petitioners. If they were
wrong in their hunch that their tenant was in fact able
to pay—and it could only ever be a hunch because the
City did not require evidence of, or even an attestation
by tenants reflecting, such inability—they were at risk
of crushing civil liability and penalties. If they were
right (though they could never know it), tenants could,
and very likely did, capitalize on the lack of required
proof to nakedly assert such an inability, once again
subjecting owners to harsh liability and penalties.
The City eventually amended its eviction
moratorium to conclude the Local Emergency Period
on January 31, 2023. See L.A., CAL., MUN. CODE ch.
IV, art. 14.6, § 49.99.2(A) (2024). This meant that
evictions could proceed for rent debts accruing in
February 2023 and thereafter. However, evictions
continued to be prohibited for an additional six
months for rent debts accruing between March 2020
and September 2021, and for twelve months for rent
debts accruing between October 2021 and January 31,
2023. Id.
While the text of the moratorium purported to
not eliminate the obligation to pay lawfully charged
rent, it did not provide any assurances that property
owners will actually recover back rents owed by
tenants at the end of the grace period. App. 67a
 9

(§ 49.99.2(A)). For example, it only provided that

tenants “may” agree to a contractual repayment plan,
but were not required to do so. Id.
In short, a tenant who failed to pay rent at any
time during the Local Emergency Period—potentially
as early as March 2020—could simply stop paying
rent, provide no proof that they were unable to pay,
and refuse to repay back rents incurred until either
August 2023 or February 2024 (depending on the
circumstances) before a property owner had any legal
way to remove them from the property. Meanwhile,
owners were not excused from property tax liabilities,
insurance costs, debt service, payment of utilities, or
any of the other substantial costs incurred to maintain
habitable dwellings. App. 49a (¶ 46). The entirety of
the ordinance thus inured to the exclusive benefit of
tenants while forcing owners to indefinitely provide
the equivalent of public housing at their sole expense.
By depriving Petitioners of their right to
exclude defaulting tenants, the City plucked one of
Petitioners’ most essential sticks from their bundle of
rights. In effect, the City imposed and transferred to
each and every defaulting tenant an exclusive
easement in Petitioners’ property. The City took this
exclusive easement interest for public use without
paying any form of just compensation to Petitioners
for that taking.
 10

B. Petitioners are only some of the thousands

of housing providers that were prevented
for years from removing nonpaying
tenants by the City’s eviction moratorium.
Petitioners own and manage luxury apartment
communities, providing over 4,800 units to
predominantly high-income tenants in the City of Los
Angeles. See App. 33a–41a (¶¶ 9–22).
Petitioners alleged at the time of filing the
complaint in August 2021 that back rents were “well
in excess” of $20 million as a direct result of the City’s
eviction moratorium. App. 32a, 51a (¶¶ 7, 50). The
moratorium prevented Petitioners from pursuing
their only legal remedy to remove nonpaying tenants
from their properties—i.e., seeking redress through
well-established state eviction laws.3 App. 31a (¶ 3).
Instead, they were “required to allow defaulting
tenants to accrue millions of dollars in back rents, and
have been prevented from physically removing any
defaulting tenants and replacing them with paying
tenants.” App. 51a (¶ 51).
C. Proceedings Below
In August 2021, Petitioners filed suit against
the City in the Central District of California, and the
case was assigned to the Honorable Dean D.
Pregerson. The district court had jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1367(a).
Petitioners asserted in the complaint that the City’s

3 See Lindsey v. Normet, 405 U.S. 56, 71–72 (1972), discussing

the provision by states of “a speedy, judicially supervised
proceeding” in exchange for owners giving up their common law
right to self-help.
 11

eviction moratorium constituted an uncompensated

physical taking of private property in violation of the
Fifth Amendment. See App. 53a–56a (¶¶ 57–67).4
Specifically, it was alleged that the moratorium
required Petitioners to continue furnishing their
properties, at that time indefinitely, to defaulting and
nonpaying tenants. App. 54a (¶ 61). Moreover, by
depriving Petitioners of their historic right to institute
unlawful detainer proceedings against nonpaying
tenants, the City stripped Petitioners of the legal
means to physically remove tenants in default. Id. In
doing so, the City took from Petitioners “the
fundamental right to exclude.” Id. On these terms, it
was alleged that the City’s eviction moratorium
constituted “government-authorized physical
invasions . . . requiring just compensation.” App. 54a–
55a (¶ 61).
Petitioners recognized in their complaint that
the owner-tenant relationship has been the subject of
reasonable regulation historically, but “property
owners have never been subject to regulations
requiring persistent and indefinite occupation by
defaulting and nonpaying tenants.” App. 55a (¶ 62).
On this point, Judge Pregerson previously agreed in
an earlier case addressing the validity of the law:
“[T]he scope and nature of the COVID-19 pandemic,

4 Petitioners asserted identical claims arising under the

California Constitution. See App. 60a–61a (¶¶ 79–84); see also
Cal. Bldg. Indus. Ass’n v. City of San Jose, 351 P.3d 974, 1008
(Cal. 2015) (Werdegar, J., concurring) (California takings claims
are analyzed congruent with federal law). Petitioners also
asserted that the eviction moratorium constituted a regulatory
taking under Penn Central Transp. Co. v. City of New York, 439
U.S. 883 (1978), but do not now seek review of those claims.
 12

and of the public health measures necessary to combat

it, have no precedent in the modern era, and that no
amount of prior regulation could have led landlords to
expect anything like the blanket Moratorium.”
Apartment Ass’n of Los Angeles Cnty., Inc. v. City of
Los Angeles, 500 F.Supp.3d 1088, 1096 (C.D. Cal.
2020).
Petitioners prayed only for a declaration
establishing the City’s liability for just compensation
in an amount to be determined by a jury, an award of
damages pursuant to 42 U.S.C. § 1983, and an award
of reasonable attorney’s fees and costs under 42 U.S.C.
§ 1988. App. 61a–62a (Complaint, Prayer at ¶¶ 1–3).
Petitioners did not seek to enjoin the moratorium.
Judge Pregerson dismissed the complaint on
the City’s motion pursuant to Rule 12(b)(6). See App.
7a–22a. To do so, the district court relied on Yee v.
City of Escondido, 503 U.S. 519 (1992), and rejected
Petitioners’ argument that Loretto and Cedar Point
are instead the controlling authority.
The court broadly read Yee—a case concerning
a local rent control law for mobile home parks—to hold
essentially that because Petitioners “invited” tenants
onto their property via a lease, subsequent regulation
of that relationship is rendered immune from physical
takings claims: “A regulation affecting that pre-
existing relationship is not a per se taking.” App. 14a,
15a. Judge Pregerson explained:
[A]s in Yee, the Moratorium does not
swoop in out of the blue to force Plaintiffs
to submit to a novel use of their property.
Nor does the Moratorium present the type
 13

of different case, contemplated by Yee,

where a regulation compels a landowner to
“refrain in perpetuity from terminating a
tenancy.” The Moratorium only precludes
evictions for a limited, albeit
indeterminate, time.
App. 14a (quoting Yee, 503 U.S. at 528).
The district court granted leave to amend, but
it was plain that if Yee precluded Petitioners’ physical
takings claims by sole virtue of their “invitation” to
tenants to lease, then no set of facts could be pled
which would overcome a second motion to dismiss as
a matter of law. Accordingly, Petitioners elected to
stand on their pleadings and the district court
dismissed the complaint with prejudice. App. 25a–26a
(notice of intent to not amend), 23a–24a (dismissal).
Petitioners timely appealed.
On May 31, 2024, the Ninth Circuit affirmed.
See App. 1a–6a. Relying on Yee, the Ninth Circuit
concluded that the City’s eviction moratorium “does
not effect a physical taking because the Landlords
voluntarily opened their property to occupation by
tenants.” App. 4a. The court continued:
Under the Supreme Court’s current
jurisprudence, a statute that merely
adjusts the existing relationship between
landlord and tenant, including adjusting
rental amount, terms of eviction, and even
the identity of the tenant, does not effect a
taking.
App. 3a (citing Yee, 503 U.S. at 527–28; FCC v. Fla.
Power Corp., 480 U.S. 245, 252 (1987)).
 14

The Ninth Circuit dismissed Petitioners’

argument that it should follow the only then-existing
circuit authority on the question, Heights Apartments,
LLC v. Walz, 30 F.4th 720 (8th Cir. 2022), that
validated a claim against an eviction moratorium per
Cedar Point and found Yee inapposite. Despite
Heights Apartments’ persuasive nature due to its
strikingly similar posture and substance to this case,
the Ninth Circuit believed itself to be “bound by Yee.”
App. 4a n.2.
Justice Kagan granted an extension for filing of
this petition until October 13, 2024, which is further
extended pursuant to SUP. CT. R. 30.1. Petitioners
now seek timely review.
REASONS FOR GRANTING THE PETITION
A. Certiorari is needed to resolve the split
between the Ninth Circuit applying Yee on
one hand, and the Federal and Eighth
Circuits applying Cedar Point on the
other, to physical takings claims against
eviction moratoria.
The Ninth Circuit is now decidedly split with
the Federal and Eighth Circuits on the question of
whether cases like Cedar Point apply to physical
takings claims against eviction moratoria, or if Yee is
instead the proper focus. Certiorari should be granted
to clarify the lodestar.
The Ninth Circuit below was squarely asked
whether Petitioners stated a claim for a physical
taking against the City of Los Angeles’s eviction
moratorium because the ordinance deprived them of
the right to exclude nonpaying tenants. The Ninth
 15

Circuit held that Petitioners did not, citing Yee, and

affirmed dismissal of Petitioners’ claims. See App. 1a–
6a.
This is par for the course in the Ninth Circuit.
That court earlier affirmed a grant of summary
judgment in favor of the City of Seattle facing physical
takings claims against its own eviction moratorium.
See El Papel, LLC. v. City of Seattle, No. 22-35656,
2023 WL 7040314 (9th Cir. Oct. 26, 2023), cert. denied
144 S. Ct. 827 (2024). The Ninth Circuit held there
that Yee “forecloses the Landlords’ per se physical-
taking claim.” Id. at *2. While recognizing that the
appellants made “some compelling points” that Cedar
Point should apply, the Ninth Circuit distinguished
Cedar Point because “Seattle’s eviction restrictions did
not impose a physical occupation on the landlords,”
nor did it “compel the Landlords to use their property
for a specific purpose.” Id. Above all, the owners in El
Papel “chose to use their property as residential
rentals; the tenants’ occupancy was not imposed over
the Landlords’ objection in the first instance.” Id.
(citing Yee, 503 U.S. at 528).
Likewise, in Bols v. Newsom, No. 22-56006,
2024 WL 208141 (9th Cir. Jan. 19, 2024), the Ninth
Circuit rejected a Cedar Point-based argument
against a commercial eviction moratorium. Citing
Yee, the court held that the moratorium “does not
constitute an ‘invasion’ of property because it does not
require commercial lessees to accommodate tenants
other than those that they already voluntarily
invited.” Id. at *1.
Thus, it is plain that Yee serves as the
touchstone in the Ninth Circuit for physical takings
 16

claims made against regulations that deprive property

owners of their fundamental right to exclude
nonpaying tenants, not Cedar Point. And under that
standard, owners simply cannot survive a motion to
dismiss as a matter of law because they initially
“invited” the tenant onto the property by way of a
lease.
The Federal Circuit sees things the other
way. See Darby Dev. Co. v. United States, 112 F.4th
1017 (Fed. Cir. 2024). There, the court was faced with
the identical legal question regarding the CDC’s
eviction moratorium and held opposite to the Ninth
Circuit on the same posture. Id. at 1022.
In holding that Cedar Point provides the
appropriate standard instead, the court emphasized
that just as in Cedar Point, where absent a regulation,
the property owners retained the right to exclude
union organizers from their property, “here
Appellants alleged (and there has been no dispute)
that, absent the Order, they could have evicted (or
‘excluded’ from their property) at least some non-rent-
paying tenants.” Id.; compare id., with App. 54a
(Complaint, ¶ 61). “And, just as the Cedar Point
regulation resulted in government-authorized
physical invasion . . . here, too Appellants alleged that
the Order, by removing their ability to evict non-rent-
paying tenants, resulted in ‘government-authorized
invasion, occupation, or appropriation’ of their
property.” Darby, 112 F.4th at 1034; compare id., with
App. 54a–55a (¶ 61).
The Darby court extensively reviewed Yee,
which it held to be inapposite as it was “fundamentally
a rent-control case.” Darby, 112 F.4th at 1035. “The
 17

[Yee] Court simply was not presented with something

akin to what has been challenged here: an outright
prohibition on evictions for nonpayment of rent.” Id.;
see also id. (noting that the petitioners in Yee retained
the right to evict tenants for nonpayment of rent).
The Eighth Circuit is in accord with the
Federal Circuit. In Heights Apartments, LLC v. Walz,
that court also held opposite to the Ninth Circuit on
identical posture to this case. 30 F.4th 720 (8th Cir.
2022). There, property owners sued Minnesota
Governor Tim Walz claiming that the Governor’s
executive order imposing a statewide residential
eviction moratorium constituted a physical taking of
property. Id. at 724.
The district court dismissed the plaintiffs’
claims pursuant to Rule 12(b)(6). Id. at 725. On
appeal, the owners argued that this Court’s opinion in
Cedar Point was the appropriate standard because the
Minnesota law “forced landlords to accept the physical
occupation of their property regardless of whether
tenants provided compensation.” Id. at 733. Governor
Walz argued in response that the moratorium
“imposed only a restriction on when a landowner could
evict a tenant,” and therefore Yee was the controlling
authority. Id.
The Eighth Circuit unambiguously held in
favor of the owners: “Cedar Point Nursery controls
here and Yee, which the Walz Defendants rely on, is
distinguishable.” Id. “Here, the [executive orders]
forbade the nonrenewal and termination of ongoing
leases, even after they had been materially violated[.]”
Id. And because the Heights Apartments plaintiffs
alleged that the Minnesota law “turned every lease in
 18

Minnesota into an indefinite lease, terminable only at

the option of the tenant,” they “sufficiently alleged
that the Walz Defendants deprived [them] of [their]
right to exclude existing tenants without
compensation,” and such allegations were sufficient to
survive a motion to dismiss pursuant to Cedar Point.
Id.
Accordingly, Petitioners present the Court with
a single and important question of constitutional law
upon which at least three federal circuits are squarely
split. But by granting this petition, the Court can also
clarify this question for litigants who may pursue
state-based takings claims throughout the country, as
state courts are in equal discord on the answer. An
“overwhelming majority” of states have parallel
takings provisions in their own constitutions. Gerald
S. Dickinson, Federalism, Convergence, and
Divergence in Constitutional Property, 73 U. MIAMI L.
REV. 139, 156 (2018). State courts “prefer to follow,
rather than diverge from, the Supreme Court’s
takings jurisprudence.” Id. at 142.
Granting certiorari can therefore help to quiet
a disquieting area of law—including instances, like
here, where the Petitioners have experienced
diametric outcomes between state and federal courts
interpreting the identical law to answer the identical
question.
For example, Petitioner GHP Management
Corporation and related plaintiffs also brought suit in
state court against the County of Los Angeles and
State of California for eviction moratoria governing
other properties under an identical physical takings
theory. The Los Angeles Superior Court denied the
 19

government defendants’ motions to dismiss pursuant

to Loretto and Cedar Point and held Yee to be
inapposite. See GHP Mgmt. Corp. v. County of Los
Angeles, No. 21CHCV00595 (L.A. Super. Ct. Apr. 15,
2022) (reprinted at App. 72a–88a). That matter is in
discovery and trial is anticipated to commence in 2026.
This is, however, not a uniform outcome. Compare id.,
with Gonzales v. Inslee, 535 P.3d 864 (Wash. 2023)
cert. denied, 144 S. Ct. 2685 (2024) (Washington
Supreme Court affirming dismissal of state-based
takings claims against an eviction moratorium, citing
Yee and rejecting application of Cedar Point).
B. The Ninth Circuit falls on the wrong side
of the split via its expansive and repeated
misreading of Yee.
Properly read, Yee is not actually in tension
with cases like Cedar Point and Loretto. This is
because Yee is “fundamentally a rent-control case,” not
a physical takings case. Darby, 112 F.4th at 1035. It
involves a highly “unusual” property arrangement,
namely, ownership of chattel housing by tenants on
real property owned by others. Yee, 503 U.S. at 523–
24, 526. And it further reaffirms, as in both Cedar
Point and Loretto, that “the ‘right to exclude’ is
doubtless . . . ‘one of the most essential sticks’” in the
property rights bundle. Id. at 528 (quoting Kaiser
Aetna v. United States, 444 U.S. 164, 176 (1979)).
The problem with Yee stems from lower courts’
misapplication of its holding to wildly different facts—
including, as here, where the City’s eviction
moratorium deprived Petitioners for years of the
fundamental right to exclude nonpaying tenants, in
effect taking from Petitioners an exclusive easement
 20

and giving it to tenants in default. See Darby, 112

F.4th at 1035 (“The Court simply was not presented
with something akin to what has been challenged
here[.]”). This is puzzling for several reasons, not the
least of which is because of Yee’s express recognition
that the park owners there retained the right to evict
tenants for “nonpayment of rent,” tenant violation of
law or park rules, or to exit the mobile home park
market altogether. Yee, 503 U.S. at 524; contra App.
66a–67a (§ 49.99.2(A)–(C)). That case is not this case.
In Yee, this Court was asked to consider a
relatively narrow challenge to a local ordinance that,
on its face, was limited to controlling rents for mobile
home communities. See 503 U.S. at 524–25.
Petitioners’ argument was nuanced, claiming that the
local ordinance, when considered in light of a state law
that was not directly challenged, effected a physical
taking because of the “unusual economic relationship”
between park and mobile home owners—i.e., mobile
home owners cannot realistically move their chattel
housing, and park owners cannot force the removal of
the home nor control the identity of subsequent
purchasers (“provided that the purchaser has the
ability to pay the rent”). Id. at 524 (citing CAL. CIV.
CODE § 798.74), 526–27.
The petitioners claimed that “the rent control
ordinance has transferred a discrete interest in land—
the right to occupy the land indefinitely at a
submarket rent—from the park owner to the mobile
home owner.” Id. at 527. The “tenants could thus reap
value that the park owners asserted belonged to
them.” Darby, 112 F.4th at 1034. Under those facts,
 21

bizarre as they were, “no physical taking occurred.”

Id.
In holding that the rent control law at issue
could not be challenged on physical takings grounds,
the Yee decision makes reference to the voluntary
nature of the petitioners’ behavior. The petitioners
had “voluntarily rented their land to mobile home
owners,” and that petitioners’ tenants “were invited by
petitioners, not forced upon them by the
government.” Yee, 503 U.S. at 527, 528. For support,
Yee quoted another rent control case, FCC v. Florida
Power Corp., 480 U.S. 245, 252–53 (1987), to
emphasize “the unambiguous distinction between
a . . . lessee and an interloper with a government
license.” Yee, 503 U.S. at 532.
As explained above, however, and unlike here,
“the laws at issue in Yee expressly permitted eviction
for nonpayment of rent.” Darby, 112 F.4th at
1035. And for its part, Florida Power Corp. was not a
physical takings case based on the deprivation of the
right to exclude because there the Court merely
rejected a challenge to a law reducing rents charged by
public utilities to cable providers for placement of lines
on existing utility poles. See Florida Power Corp., 480
U.S. at 252 (“Appellees contend, in essence, that it is
a taking under Loretto for a tenant invited to lease at
a rent of $7.15 to remain at the regulated rent of
$1.79.”).
It is true that the Florida Power Corp. opinion
suggests that in that context, “it is the invitation, not
the rent, that makes the difference.” Id. But this
statement can only take the government so far
because the Court also recognized that at some point
 22

the reduced rents would become unconstitutionally

confiscatory, and that the regulation there still
provided for payment of a “minimum reasonable rate.”
Id. at 253 (citing St. Joseph Stock Yards Co. v. United
States, 298 U.S. 38 (1936)). In that case, just as in Yee,
the Court was simply not faced with anything like
here: a deprivation of the right to exclude vis-à-vis a
prohibition on evictions for nonpayment of rent. See
Darby, 112 F.4th at 1035. Florida Power Corp. cannot
be read to mean that a regulation allowing cable
providers to unilaterally withhold payment of pole
rents without consequence would be a legitimate
stretch of the original bargain.
What Yee’s properly understood holding
accomplished is relatively narrow. What Yee does not
hold, however, is much broader. As the Federal
Circuit noted in Darby, Yee did not hold “that
government actions implicating the landlord-tenant
relationship can never be physical takings.” Id. While
Yee might confirm that state and local governments
have the power to regulate tenancies in some ways,
nothing in the decision can or should be read to
categorically immunize government action from
physical takings claims. Yee’s own language belies
any such thing by providing the caveat that it would
be a “different case” if a regulation were “to compel a
landowner over objection to rent his property or to
refrain in perpetuity from terminating a tenancy.”
Yee, 503 U.S. at 528.
Further, Yee’s language suggesting that a
physical takings claim might lie only where a
regulation requires an owner to submit to tenant
occupation “in perpetuity” must be discounted in light
 23

of subsequent clarity provided by Cedar Point itself.

As the Court has since made clear, “physical
appropriation is a taking whether it is permanent or
temporary.” Cedar Point, 594 U.S. at 153.; see also
Darby, 112 F.4th at 1036 (recognizing same). It
matters not whether a physical taking is temporary or
permanent—that fact only bears on the measure of
compensation, not on whether a taking has occurred
in the first place. Cedar Point, 594 U.S. at 153.
Given the dissimilarity between this case and
Yee, the Ninth Circuit should have instead applied
Cedar Point, just as the Federal and Eighth Circuits
have done. As in Cedar Point, Petitioners have alleged
that but for the City’s regulation, they would have
retained their right to exclude. App. 54a (¶ 61). And,
also just as in Cedar Point where it was alleged that
the challenged regulation resulted in a government-
authorized occupation of their property through the
deprivation of that right, Petitioners have done so
here. App. 54a–55a (¶ 61).
As this Court recently observed in Sheetz v.
County of El Dorado, “the right to compensation is
triggered” where the government “interfere[s] with
the owner’s right to exclude others from it.” 601 U.S.
267, 274 (2024) (citing Cedar Point, 594 U.S. at 149–
52). “That sort of intrusion on property rights is a per
se taking.” Id. (citing Loretto, 458 U.S. at 426). This
simple principle applies here with equal vigor.
Petitioners remain baffled, like the Federal Circuit,
“how forcing property owners to occasionally let union
organizers on their property infringes their right to
exclude, while forcing them to house non-rent-paying
 24

tenants (by removing their ability to evict) would not.”

Darby, 112 F.4th at 1035.
It is no surprise that this Court has already
agreed with this principle in the very context presented
by this petition, because it is one that is so basic as to
be beyond reproach: “preventing [owners] from
evicting tenants who breach their leases intrudes on
one of the most fundamental elements of property
ownership—the right to exclude.” Alabama Ass’n of
Realtors v. Dep’t of Health & Hum. Servs., 594 U.S.
758, 765 (2021) (citing Loretto, 458 U.S. at 435).
C. Yee’s “voluntary principle” is unsound,
and this Court should use this opportunity
to limit it.
In some sense, this case revolves around the
significance (or not) of Petitioners’ initial invitation to
lease the premises. That is certainly the hook upon
which both lower courts hung their respective hats,
finding Yee’s “voluntary principle” enough to dismiss
Petitioners’ constitutional claims at the courthouse
doors. App. 3a–4a, 14a–15a. The lower courts here
are not alone in seizing upon this language as if it
holds singular power to dismiss such claims, even
where the challenged regulations indisputably
operate to deprive owners of fundamental features of
property like the right to exclude.
But it is hard to discern any sound basis for this
principle. By reducing the inquiry into a single
question—was the tenant invited?—courts focus on a
superficial distinction while ignoring more apt
precedent, like Cedar Point.
 25

All invitations are contingent. If guests are

invited to a holiday dinner, the invitees are rightly
expected to not stay until spring. And if a property
owner “invites” a tenant to inhabit property through a
lease, then it is properly expected that the tenant will
abide by the material terms of that lease, including
the timely payment of rent. Once that ceases, the
invitation no longer operates to control the
relationship. That the government could allow the
tenant to unilaterally extend the “invitation” destroys
the contingent nature of the invitation itself.
All invitations share a second critical feature:
they are dependent upon the availability of recourse if
the invitee violates the conditions of the invitation.
Few, if any, invitations would ever be extended
otherwise. From the dinner example, the host could
ask the guest to leave, a request that is backed by force
of law if the guest refuses. See CAL. PENAL CODE
§ 602(o) (Deering 2024) (trespass). In modern tenant-
law contexts, this means the opportunity to remove
defaulting tenants via unlawful detainer proceedings.
See, e.g., Lindsey v. Normet, 405 U.S. 56, 71–72 (1972).
Eviction moratoria, like the one challenged here,
attack both the contingency and dependency inherent
in every owner-tenant “invitation,” i.e., observance of
material lease terms and availability of recourse upon
their violation.
Furthermore, if the invitation is truly the crux
of the issue, then consider this. It would be
unthinkable to absolve a local government from
takings liability if, for example, a property owner were
to extend an invitation to lease property to the
government, only to have the government welch on its
 26

rent payments and remain on the property to the

exclusion of the owner. Rather, that would
undoubtedly rise to a compensable physical taking of
private property, even if the government later
resumed rent payments.5
But if the hypothetical municipality is swapped
for a private citizen who—acting under color of law—
welches on rent payments to the same owner, for the
same property, and for the same duration, then there
cannot be a physical taking, at least according to the
Ninth Circuit. Instead, the property owner must take
her lumps because nobody forced her to lease, after all.
That is a very strange distinction. The Federal
Circuit has rightly observed the paucity of reason
behind it. By taking Yee’s voluntary principle to its
logical end, there is no limit to its scope: “that would
essentially mean that all government actions
implicating the landlord-tenant relationship are
immune from being treated as physical takings”
because “just about every landlord-tenant relationship
stems from a voluntary ‘invitation’ from the landlord
to a tenant.” 112 F.4th at 1036.
This principle has troubled legal commentators
from the get go. As Professor Richard Epstein
correctly predicted over 30 years ago:
The dangerous doctrine, which receives a
regrettable boost from the Yee decision, is
that if the landowner voluntarily grants a
limited estate, then the state can stretch

5 See Cedar Point Nursery v. Hassid, 594 U.S. 139, 153 (2021)
(“we have held that a physical appropriation is a taking whether
it is permanent or temporary”).
 27

that interest into a fee simple without

paying just compensation. . . . The long
term consequences of the decision in Yee
can only be negative.
Richard A. Epstein, Yee v. City of Escondido: The
Supreme Court Strikes Out Again, 26 LOY. L.A. L. REV.
3, 17–18 (1992).
Even commentators critical of this Court’s
recent takings jurisprudence admit that this Court
will eventually consider the question raised by the
present petition:
It seems possible, even likely, that the
Court might revisit Yee in a future case
and impose some limits on this form of the
open-door argument. But for now, the
initial invitation may work to preclude
application of a per se rule in similar
situations.
Lee Anne Fennell, Escape Room: Implicit
Takings After Cedar Point Nursery, 17 DUKE J. OF
CONST. L. & PUB. POL’Y 1, 15–16 (2022).
It is past time for the Court to limit Yee’s
disastrous and unintended consequences. This
petition presents such an opportunity.
D. This case presents a clean vehicle to check
the government’s power to take private
property without paying for it.
If this Court is inclined to clarify Yee’s limited
scope and further affirm the sanctity of private
property rights, this petition presents the best chance
to do so. This case revolves around a single legal
 28

question for this Court’s consideration, and its

procedural posture is ideally situated for the Court to
answer it as a matter of law.
The question presented was directly considered
by the courts below, as well as the Eighth and Federal
Circuits, against which the Ninth Circuit has split.
And further, the answer is dependent solely on the
Court’s interpretation of its own precedent, including
how physical takings claims against eviction
moratoria interact with cases like Loretto and Cedar
Point.
Finally, this Court’s jurisdiction and the
jurisdiction of the lower courts cannot be questioned—
the matter clearly arises as a federal question and all
relevant procedural requirements have been observed
on this case’s journey here. See also App. 2a–3a
(Ninth Circuit rejecting City’s claim that Petitioners
lacked standing); 7a–22a & 22a n.5 (district court
considering claims on the merits and expressly
declining to consider ripeness and standing
challenges).
While it is true that this Court recently twice
passed on petitions similar to this one, that fact should
not give the Court pause. In both cases—El Papel,
LLC. v. City of Seattle, No. 22-35656, 2023 WL
7040314 (9th Cir. 2023), cert. denied 144 S. Ct. 827
(Feb. 20, 2024), and Gonzales v. Inslee, 535 P.3d 864
(Wash. 2023), cert. denied, 144 S. Ct. 2685 (June 24,
2024)—this Court did not have the benefit of the more
recent decision issued by the Federal Circuit on
August 7, 2024 in Darby Development Co. v. United
States, further widening the circuit split. Now, the
Federal and Eighth Circuits are opposed to the Ninth
 29

Circuit on a squarely considered question of

constitutional law. Further, the petitioners in El
Papel only asserted nominal damages, whereas
Petitioners here have asserted at least $20 million in
damages resulting directly from the City’s
moratorium. Compare El Papel, 2023 WL 7040314, at
*1, with App. 32a, 51a (¶¶ 7, 50). Moreover, the
petitioners in Gonzales did not assert any federal
claims in their suit against the State of Washington,
and the petition for certiorari was sought on a
challenge to the Washington Supreme Court’s review
of state-based claims. See Gonzales, 535 P.3d at 288–
89. None of these arguable hurdles to certiorari are
present here. Instead, this case presents a single, live,
federal question for review, and Petitioners have
asserted significant and serious losses that depend on
the answer.
Finally, it is worth noting that nothing in this
petition threatens the authority of the City, nor any
other municipality for that matter, to respond to
emergencies. See Knick v. Township of Scott, 588 U.S.
180 (2019) (“So long as the property owner has some
way to obtain compensation after the fact,
governments need not fear that courts will enjoin their
activities.”). As its text makes plain, the Takings
Clause does not prohibit the taking of private
property, but instead places a condition on the
exercise of that power by requiring just compensation.
See, e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528,
536–37 (2005). Petitioners here did not seek to enjoin
the City’s moratorium, but only ask to be compensated
for property interests taken from them by way of the
City’s eviction moratorium—“public burdens which, in
all fairness and justice, should be borne by the public
 30

as a whole.” Armstrong v. United States, 364 U.S. 40,

49 (1960).
* * *
Petitioners are property owners who were
commanded by the City to bear the brunt of the
public’s response to the pandemic. They paid for it out
of their own pockets to the tune of millions of dollars
in unrecoverable rents. And they suffered years of
forced acquiescence to housing nonpaying tenants
whom they could not physically remove from their
properties. The eviction moratorium challenged here,
as Petitioners have amply alleged, was one of the most
onerous in the country. This case therefore provides
the Court with a rare opportunity to limit at the
margins the rapidly expanding scope of municipal
power to take private property without paying for it.
The Court should recognize this petition for
what it is—a chance to once again affirm that the Fifth
Amendment’s protection of private property is not a
second-class right.
CONCLUSION
This Court should grant the petition.
 31

Respectfully submitted,

DOUGLAS J. DENNINGTON
Counsel of Record
JAYSON A. PARSONS
RUTAN & TUCKER, LLP
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
Telephone: 714-641-5100
[email protected]

Counsel for Petitioners

APPENDIX
 i

TABLE OF APPENDICES
Page
A P PEN DI X A — M EMOR A N DU M OF
T H E U N I T ED S TAT E S C OU RT OF
APPEALS FOR THE NINTH CIRCUIT,
FILED MAY 31, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A P PEN DI X B — OR DER GR A N T I NG
MOTIONS TO DISMISS OF THE UNITED
STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA,
FILED NOVEMBER 17, 2022 . . . . . . . . . . . . . . . . . 7a

A PPEN DI X C — J U D GM EN T OF
DISMIS S A L OF T HE U NI T ED
STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA,
FILED DECEMBER 29, 2022 . . . . . . . . . . . . . . . . 23a

A PPENDIX D — PLAINTIFFS’ NOTICE

OF IN T EN T NO T T O FILE A N
A M EN DE D C OM P L A I N T, U N I T E D
STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA,
FILED DECEMBER 8, 2022 . . . . . . . . . . . . . . . . . 25a

APPENDIX E — COMPLAINT IN THE UNITED

STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA,
FILED AUGUST 4, 2021 . . . . . . . . . . . . . . . . . . . . . 27a

APPENDIX F — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63a
 ii

Table of Appendices
Page
APPENDIX G — COURT ORDER OF THE
SUPERIOR COURT OF CALIFORNIA,
COUNT Y OF LOS A NGELES, FILED
APRIL 15, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72a
 1a

APPENDIX A —Appendix A
MEMORANDUM OF THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT, FILED MAY 31, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
No. 23-55013
D.C. No. 2:21-cv-06311-DDP-JEM

GHP MANAGEMENT CORPORATION; et al.,

Plaintiffs-Appellants,

v.

CITY OF LOS ANGELES,

Defendant-Appellee,

STRATEGIC ACTIONS FOR A JUST ECONOMY; et al.,

Intervenor-Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California
Dean D. Pregerson, District Judge, Presiding

Argued and Submitted April 11, 2024

Pasadena, California
 2a

Appendix A

Before: SILER,* BEA, and IKUTA, Circuit Judges.

MEMORANDUM**

GHP Management Corp. and thirteen owners of Los

Angeles apartment buildings (collectively, “Landlords”)
appeal the district court’s dismissal of their Fifth
Amendment Takings Clause claims challenging section
49.99 of the Los Angeles Municipal Code, the City’s
eviction moratorium enacted during the COVID-19
pandemic. We have jurisdiction under 28 U.S.C. § 1291,
and review de novo the grant of a motion to dismiss. Fort
v. Washington, 41 F.4th 1141, 1144 (9th Cir. 2022).

The City argues that the Landlords lack standing to

bring this action because they did not allege that section
49.99 thwarted their eviction of the tenants, and a landlord
suffers no injury unless a tenant successfully raises section
49.99 as a defense to an effort to evict. We disagree. To
demonstrate standing, a plaintiff must show an “injury in
fact,” among other elements. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). The
City has prohibited landlords from evicting or endeavoring
to evict a tenant for non-payment of rent “if the tenant
is unable to pay rent due to circumstances related to the
COVID-19 pandemic.” L.A., Cal., Mun. Code § 49.99.2(A).
A landlord who complies with this legal requirement
must forego rental payments that would otherwise be due
* The Honorable Eugene E. Siler, United States Circuit
Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting
by designation.
** This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
 3a

Appendix A

under the lease. Each of the Landlords here has alleged

either that some of its tenants “have taken advantage of
the Eviction Moratorium to withhold payment of rent,” or
that it lost rent due to owning an apartment community
in Los Angeles that is subject to the moratorium. These
allegations of lost rent as a result of compliance with the
City’s applicable ordinances constitute an injury in fact;
“[c]ertainly the Supreme Court has been satisfied by less.”
Barnum Timber Co. v. U.S. EPA, 633 F.3d 894, 898 (9th
Cir. 2011); see also Lucas v. S.C. Coastal Council, 505 U.S.
1003, 1012 n.3, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992)
(holding that a complaint’s prayer for “damages for the
temporary taking” of property was sufficient to allege
injury in fact at the pleading stage).

The Landlords failed to state a claim for a Fifth

Amendment per se physical taking. Under the Supreme
Court’s current jurisprudence, a statute that merely
adjusts the existing relationship between landlord and
tenant, including adjusting rental amount, terms of
eviction, and even the identity of the tenant, does not
effect a taking. See Yee v. City of Escondido, 503 U.S. 519,
527-28, 112 S. Ct. 1522, 118 L. Ed. 2d 153 (1992); see also
FCC v. Fla. Power Corp., 480 U.S. 245, 252, 107 S. Ct.
1107, 94 L. Ed. 2d 282 (1987) (“[S]tatutes regulating the
economic relations of landlords and tenants are not per se
takings.”). “The government effects a physical taking only
where it requires the landowner to submit to the physical
occupation of his land” by a third party. Yee, 503 U.S.
at 527. The Supreme Court has made an “unambiguous
distinction between a commercial lessee and an interloper
with a government license.” Fla. Power, 480 U.S. at 252-
53; cf. Cedar Point Nursery v. Hassid, 594 U.S. 139, 152,
 4a

Appendix A

141 S. Ct. 2063, 210 L. Ed. 2d 369 (2021) (explaining that

“government-authorized invasions of property . . . are
physical takings”).1 And the Court may consider whether
a statute effected a taking “were the statute, on its face or
as applied, to compel a landowner over objection to rent his
property or to refrain in perpetuity from terminating a
tenancy.” Yee, 503 U.S. at 528. Here section 49.99 does not
effect a physical taking because the Landlords voluntarily
opened their property to occupation by tenants.2 Moreover,
section 49.99 did not compel landlords to rent property
in perpetuity, but rather allowed landlords to evict their
previously invited tenants for reasons not otherwise
prohibited. 3

1. Therefore Horne v. Department of Agriculture, relied on by

the Landlords, is not on point, because it involved a third party (the
government) taking property, rather than an adjustment of voluntary
relations between a landlord and a tenant. 576 U.S. 351, 365, 135 S.
Ct. 2419, 192 L. Ed. 2d 388 (2015).

2. Because we are bound by Yee, we decline to follow Heights

Apartments, LLC v. Walz, 30 F.4th 720 (8th Cir. 2022), which
ruled that an eviction ordinance that prohibited the nonrenewal or
termination of a lease absent specified circumstances constituted
a per se physical taking. In reaching this conclusion, Heights
Apartments distinguished Yee on the ground that the ordinance in
that case did not deprive landlords of their right to evict. Id. at 733.
But as explained by Judge Colloton, see Heights Apartments, LLC
v. Walz, 39 F.4th 479, 480 (8th Cir. 2022) (Colloton, J., dissenting
from denial of rehearing en banc), the ordinance in Yee did preclude
landlords from evicting their present tenants, as well as their tenants’
successors in interest, for most reasons, and yet “did not effect a
per se taking.”

3. The Landlords’ reliance on Alabama Association of Realtors

v. Department of Health and Human Services, 594 U.S. 758, 141
 5a

Appendix A

The Landlords also failed to state a claim for a Fifth

Amendment regulatory taking. Here the Landlords failed
to allege the diminution in property values they suffered
as a result of the eviction moratorium, and alleged only
the amount of rent lost. “But the mere loss of some income
because of regulation does not itself establish a taking.”
Colony Cove Props., LLC v. City of Carson, 888 F.3d
445, 451 (9th Cir. 2018). Instead, “economic impact is
determined by comparing the total value of the affected
property before and after the government action.” Id.;
see also Murr v. Wisconsin, 582 U.S. 383, 395, 137 S. Ct.
1933, 198 L. Ed. 2d 497 (2017) (“[O]ur test for regulatory
taking requires us to compare the value that has been
taken from the property with the value that remains in
the property.”) (quoting Keystone Bituminous Coal Ass’n
v. DeBenedictis, 480 U.S. 470, 497, 107 S. Ct. 1232, 94 L.
Ed. 2d 472 (1987)). Although Colony Cove considered the
economic impact of an alleged taking after a jury trial,
its formula for determining economic impact is binding at
all stages of the litigation process. 888 F.3d at 451. While
such diminution in value need not be shown where a statute
completely abolishes “both the descent and devise of a
particular class of property,” Hodel v. Irving, 481 U.S.
704, 717, 107 S. Ct. 2076, 95 L. Ed. 2d 668 (1987), such
unusual circumstances are not present here.

Because we affirm the grant of the motion to

dismiss, the question whether the district court erred in

S. Ct. 2485, 210 L. Ed. 2d 856 (2021) (per curiam), is misplaced,

because that case held only that the Centers for Disease Control
and Prevention lacked the authority to pass an eviction moratorium,
and did not address a per se physical takings claim. Id. at 763-65.
 6a

Appendix A

granting the motion of the Alliance of Californians for

Community Empowerment Action, Strategic Actions for
a Just Economy, and Coalition for Economic Survival to
intervene is moot. See Prete v. Bradbury, 438 F.3d 949,
959-60 (9th Cir. 2006).

AFFIRMED.4

4. The motion for judicial notice, at Dkt. 9, is granted. Lee v.

City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001); Fed. R.
Evid. 201(b). The motion to file an amicus brief in support of the City,
Dkt. 29, is denied as moot. The motion to file an amicus brief, Dkt.
52, is denied as untimely. Fed. R. App. P. 29(a)(6).
 7a

Appendix
APPENDIX B — ORDER B
GRANTING MOTIONS
TO DISMISS OF THE UNITED STATES DISTRICT
COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA, FILED NOVEMBER 17, 2022

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV 21-06311 DDP (JEMx)

[Dkt 17, 43]

GHP MANAGEMENT CORPORATION,

Plaintiff,

v.

CITY OF LOS ANGELES,

Defendant.

Filed November 17, 2022

ORDER GRANTING MOTIONS TO DISMISS

Presently before the court are two Motions to Dismiss

Plaintiffs’ Complaint, one filed by Defendant City of Los
Angeles (“the City”) and the other filed by Intervenors
Alliance for Community Empowerment (“ACCE”);
Strategic Actions for a Just Economy (“SAJE”); and
Coalition for Economic Survival (“CES”) (collectively,
“Intervenors”). Having considered the submissions of
the parties, the court grants the motions and adopts the
following Order.
 8a

Appendix B

I. Background

At the outset of the COVID-19 pandemic, the City

enacted Ordinance No. 186585, which was later updated
by Ordinance No. 186606 (collectively, the “Eviction
Moratorium” or “Moratorium”). Plaintiffs allege that the
Eviction Moratorium “effectively precludes residential
evictions.” (Complaint ¶ 45.) The Moratorium prohibits
landlords from terminating tenancies due to COVID-
related nonpayment of rent, any no-fault reason, certain
lease violations related to additional occupants and
pets, or removal of rental units from the rental market.
(Complaint ¶ 46; LAMC § 49.99.2, 49.99.4.)1 Landlords
are also prohibited from charging interest or late fees on
COVID-related missed rent. (LAMC § 49.99.2(D).) The
Moratorium further allows tenants who have missed rent
payments a one-year period to pay delayed rent, starting
from the end of the ongoing local emergency period.
(Compl. ¶ 46; LAMC § 49.99.2) Tenants may sue landlords
and seek civil penalties for violations of the Moratorium.
(Compl. ¶ 49; LAMC § 49.99.7.)

Plaintiffs, comprised of (1) thirteen limited liability

corporations or limited partnerships that own apartment
buildings and (2) the management company that manages
the buildings, own or manage nearly five thousand
apartment units in Los Angeles. Plaintiffs allege that
the Moratorium constitutes an uncompensated taking of
private property in violation of the Fifth Amendment’s
Takings Clause, as well as the California Constitution’s
Takings Clause. Plaintiffs’ Complaint seeks an award

1. The City’s Request for Judicial Notice is granted.

 9a

Appendix B

of “just compensation,” costs, and attorney’s fees, but

does not seek to invalidate or enjoin enforcement of the
Moratorium.

Intervenors and the City now move separately to

dismiss Plaintiffs’ Complaint.

II. Legal Standard

A complaint will survive a motion to dismiss when

it “contain[s] sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When
considering a Rule 12(b)(6) motion, a court must “accept
as true all allegations of material fact and must construe
those facts in the light most favorable to the plaintiff.”
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
Although a complaint need not include “detailed factual
allegations,” it must offer “more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Iqbal, 556
U.S. at 678. Conclusory allegations or allegations that
are no more than a statement of a legal conclusion “are
not entitled to the assumption of truth.” Id. at 679. In
other words, a pleading that merely offers “labels and
conclusions,” a “formulaic recitation of the elements,” or
“naked assertions” will not be sufficient to state a claim
upon which relief can be granted. Id. at 678 (citations and
internal quotation marks omitted).

“When there are well-pleaded factual allegations, a

court should assume their veracity and then determine
whether they plausibly give rise to an entitlement of
 10a

Appendix B

relief.” Iqbal, 556 U.S. at 679. Plaintiffs must allege

“plausible grounds to infer” that their claims rise “above
the speculative level.” Twombly, 550 U.S. at 555-56.
“Determining whether a complaint states a plausible
claim for relief ” is “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.

III. Discussion

A. Per Se Taking

Movants contend that the Moratorium is not a

permanent physical invasion of Plaintiffs’ properties,
and therefore does not constitute a per se taking. (E.g.,
City Mot. at 15.) See Loretto v. Teleprompter Manhattan
CATV Corp., 458 U.S. 419, 440 (1982) (“We affirm the
traditional rule that a permanent physical occupation of
property is a taking.”) In Loretto itself, the Supreme Court
recognized “that States have broad power to regulate
housing conditions in general and the landlord-tenant
relationship in particular without paying compensation
for all economic injuries that such regulation entails[,]
. . . [s]o long as these regulations do not require the
landlord to suffer the physical occupation of a portion of
his building by a third party.” Id. Later, in Yee v. City of
Escondido, Cal., 503 U.S. 519 (1992), the Court held that
a combination of rent control laws and eviction protections
that limited property owners’ ability to evict tenants did
not constitute governmental authorization of “a compelled
physical invasion of property” that would constitute a per
se taking. Yee, 503 U.S. at 527-28.
 11a

Appendix B

In Yee, a local rent control ordinance limited a mobile

home park owners’ ability to raise rents, while a state
law simultaneously protected mobile home owners’
ability to transfer mobile homes sited on rented mobile
home park land. Id. at 524-25. The park owners alleged
that the rent control scheme, against the backdrop of
the state law, constituted a physical taking of park land,
insofar as it granted tenants and their successors “the
right to physically permanently occupy and use the real
property of Plaintiff.” Id. at 525. The Court disagreed.
“When a landowner decides to rent his land to tenants,
the government may place ceilings on the rents the
landowner can charge, or require the landowner to accept
tenants he does not like, without automatically having to
pay compensation.” Id. at 529 (internal citations omitted).
“Petitioners’ tenants were invited by petitioners, not
forced upon them by the government. . . . A different case
would be presented were the statute, on its face or as
applied, to compel a landowner over objection to rent his
property or to refrain in perpetuity from terminating a
tenancy.” Id. at 528.

In response to Movants’ arguments that Yee controls

here, Plaintiffs argue primarily that Yee is no longer
good law because “six members of the Supreme Court
obviously disagree” with its central premise: that once
a landlord chooses to rent to tenants, the government
may regulate the landlord-tenant relationship without
automatically engaging in a per se taking. (Opp. to City
Mot. at 18:17.) To support their assertion, Plaintiffs point
to the Supreme Court’s recent decisions in Alabama Ass’n
of Realtors v. Department of Health & Human Services,
141 S. Ct. 2485 (2021), and Pakdel v. City & Cty. of San
 12a

Appendix B

Francisco, 141 S. Ct. 2226 (2021). These cases bear only

tangentially however, if at all, on the continued validity
of Yee. In Alabama Association of Realtors, the Supreme
Court granted an emergency application to vacate a
stay of a judgment invalidating the Centers for Disease
Control and Prevention (“CDC”)’s eviction moratorium.
Alabama Ass’n of Realtors, 141 S.Ct. at 2486, 2490. The
Court did not address any takings issue anywhere in its
opinion. Although the Court did, citing Loretto, recognize
that the right to exclude is “one of the most fundamental
elements of property ownership,” Yee acknowledged the
very same principle. Id.; Yee, 503 U.S. at 528 (“[T]he right
to exclude is doubtless . . . one of the most essential sticks
in the bundle of rights that are commonly characterized
as property. . . . ”) (internal quotation marks omitted).

Pakdel did involve a takings claim, albeit a regulatory

takings claim rather than a per se claim. Pakdel, 141 S.Ct.
at 2228. The Court’s opinion, however, was limited to the
question whether petitioners were required to exhaust
local government administrative procedures before filing
suit pursuant to 42 U.S.C. § 1983, even after the local
government had rendered a final regulatory decision. Id.
In the course of answering that question in the negative,
the Court stated in a footnote that “[o]n remand, the Ninth
Circuit may give further consideration to [merits] claims
in light of our recent decision in Cedar Point Nursery
v. Hassid.” 2 Id. at 2229 n.1 (citation omitted). In Cedar
Point, the Court concluded that a California law requiring
farmers to grant union organizers access to private

2. The district court in Pakdel did not reach the merits of

the takings claims. Pakdel, 141 S.Ct. at 2228-29.
 13a

Appendix B

property for up to three hours per day, 120 days per year,
constituted a per se physical taking. Cedar Point Nursery
v. Hassid, 141 S. Ct. 2063, 2069, 2080 (2021). Although the
Court did cite Yee, it did so only once, and then only as an
example of a decision that has “described use restrictions
that go ‘too far’ as ‘regulatory takings.’” Id. at 2072. The
Court then observed that the “regulatory takings” label
can be misleading where, as in Cedar Point, “a regulation
results in a physical appropriation of property.” Id. The
Court made no further mention of Yee, let alone the
principle that a regulation governing an existing landlord-
tenant relationship is distinguishable from a regulation
compelling physical occupation in the first instance, or
in perpetuity. Thus, contrary to Plaintiffs’ suggestion,
the Court’s footnote in Pakdel, indicating that the Ninth
Circuit remains free to consider Cedar Point if and when
the Ninth Circuit, on remand, reaches merits issues that
were never reached by the district court, does little to
vitiate Yee. 3

3. This Court acknowledges that in Heights Apartments,

LLC v. Walz, the Eighth Circuit found Yee distinguishable and
applied Cedar Point to sustain a per se takings challenge to an
eviction moratorium. Heights Apartments, 30 F.4th 720, 733
(8th Cir. 2022). That has not, however, been the Ninth Circuit’s
approach. In Ballinger v. City of Oakland, for example, the Ninth
Circuit addressed a takings challenge to an ordinance requiring
payments to tenants prior to an eviction, even for good cause.
Ballinger, 24 F.4th 1287, 1292 (9th Cir. 2022), cert. denied sub
nom. Ballinger v. City of Oakland, California, 142 S. Ct. 2777
(2022). Citing to both Cedar Point and Yee, the court applied the
latter, concluding that even a regulation mandating payments
from landlords to tenants constituted a regulation of the use of
property, and not a per se taking, such as those described in Yee,
compelling the creation of a new landlord-tenant relationship or
 14a

Appendix B

This Court declines Plaintiffs’ invitation to read the

tea leaves, such as they are, in Alabama Association of
Realtors, Pakdel, and Cedar Point. None of those cases
can be read to abrogate Yee or its prescription that laws
that “merely regulate [landlords’] use of their land by
regulating the relationship between landlord and tenant”
do not constitute per se takings. Yee, 503 U.S. at 528
(emphasis original).

Plaintiffs also argue, briefly, that the Moratorium

constitutes a per se taking even under Yee because it
“requires the landowner to submit to the physical occupation
of his land. ‘This element of required acquiescence is at the
heart of the concept of occupation.’” (Opp. to Intervenors’
Mot. at 3:23-28.) Yee, 503 U.S. at 527 (quoting FCC v.
Florida Power Corp., 480 U.S. 245, 252 (1987) (emphasis
original)). But, as in Yee, the Moratorium does not swoop
in out of the blue to force Plaintiffs to submit to a novel
use of their property. Nor does the Moratorium present
the type of different case, contemplated by Yee, where a
regulation compels a landowner to “refrain in perpetuity
from terminating a tenancy.” Id. at 528. The Moratorium
only precludes evictions for a limited, albeit indeterminate,
time. Compare id. (discussing Cal.Civ.Code § 798.56(g)
requirement of up to 12 months notice prior to eviction).
“Put bluntly, no government has required any physical
invasion of petitioners’ property. [The] tenants were
invited by [the landlords], not forced upon them by the
government.” Yee, 503 U.S. at 528; see also Ballinger, 24

barring the termination of a tenancy “in perpetuity.” Id. at 1293-

94 (quoting Yee, 503 U.S. at 528).
 15a

Appendix B

F.4th at 1293 (No per se taking, even where regulation

required payment by landlord to tenants prior to eviction
for good cause, because landlord plaintiffs “voluntarily
chose to lease their property. . . . ”). A regulation affecting
that pre-existing relationship is not a per se taking.

B. Regulatory taking

“[W]hile property may be regulated to a certain

extent, if regulation goes too far it will be recognized
as a taking.” Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 415 (1922). “[C]ompensation is required only if
considerations such as the purpose of the regulation or the
extent to which it deprives the owner of the economic use
of the property suggest that the regulation has unfairly
singled out the property owner to bear a burden that
should be borne by the public as a whole.” Yee, 503 U.S.
at 522-23 (citing Penn Central Transportation Co. v. New
York City, 438 U.S. 104, 123-125 (1978)). The relevant
Penn Central factors “include the regulation’s economic
impact on the claimant, the extent to which the regulation
interferes with distinct investment-backed expectations,
and the character of the government action.” MHC Fin.
Ltd. P’ship v. City of San Rafael, 714 F.3d 1118, 1127 (9th
Cir. 2013).

1. Economic Impact

The Ninth Circuit discussed the Penn Central factors,

including the economic impact factor, at length in Colony
Cove Properties, LLC v. City of Carson, 888 F.3d 445 (9th
 16a

Appendix B

Cir. 2018). As the court explained, “[n]ot every diminution

in property value caused by a government regulation rises
to the level of an unconstitutional taking.” Colony Cove,
888 F.3d at 451. Similarly, “the mere loss of some income
because of regulation does not itself establish a taking.” Id.
Rather, courts look to whether a regulation is “functionally
equivalent to the classic taking in which government
directly appropriates private property or ousts the owner
from his domain.”4 Id. (quoting Lingle v. Chevron U.S.A.
Inc., 544 U.S. 528, 539 (2005)). Accordingly, the threshold
is high. Indeed, the Ninth Circuit has observed that a
diminution in property value as high as 92.5% does not
constitute a taking, and no court has found a taking where
the diminution of value does not exceed 50%. Id.

To determine a diminution in value for purpose of

evaluating the economic impact on a plaintiff, courts
“compare the value that has been taken from the property
with the value that remains in the property.” Colony Cove,
888 F.3d at 451 (quoting Keystone Bituminous Coal Ass’n
v. DeBenedictis, 480 U.S. 470, 497 (1987)). Here, however,
Plaintiffs’ Complaint does not allege any particular
diminution in value, or specific pre- or post-Moratorium
values from which a level of diminution could be calculated.

Plaintiffs assert that this pleading deficiency is not

fatal, and that they need not allege any quantitative facts
pertaining to valuation, because the Ninth Circuit’s Colony

4. This same fundamental inquiry underpins analyses of per

se takings. See Lingle, 544 U.S. 538-39.
 17a

Appendix B

Cove opinion is wrong. (Opp. to Intervenors’ Mot. at 6:1-4,

7 n.4.) Plaintiffs contend that because the Penn Central
factor analysis is “essentially ad hoc,” the allegation that
Plaintiffs have lost rents as a result of the Moratorium is
alone sufficient to satisfy the economic impact factor. See
Penn Central, 438 U.S. at 124.

Even if this Court were to agree with the substance

of Plaintiffs’ arguments, the court could not simply
disregard Colony Cove and excuse Plaintiffs of their
burden to allege and show the requisite adverse economic
impact. “A district court bound by circuit authority . . .
has no choice but to follow it, even if convinced that such
authority was wrongly decided.” Hart v. Massanari, 266
F.3d 1155, 1175 (9th Cir. 2001). Plaintiffs’ allegation that
their tenants are $20 million in arrears is presented in
a vacuum, and cannot alone demonstrate a significant
economic impact, notwithstanding Plaintiffs’ vague and
conclusory allegation that “the economic impact of the
Eviction Moratorium is severe and ruinous.” (Compl. ¶ 71.)

2. Interference with investment-backed

expectations

The next Penn Central factor is “the extent to which

the regulation has interfered with distinct investment-
backed expectations.” Penn Central, 438 U.S. at 124.
“To ‘expect’ can mean to anticipate or look forward to,
but it can also mean ‘to consider probable or certain,’
and ‘distinct’ means capable of being easily perceived, or
characterized by individualizing qualities.” Guggenheim
 18a

Appendix B

v. City of Goleta, 638 F.3d 1111, 1120 (9th Cir. 2010)

(en banc). “To form the basis for a taking claim, a
purported distinct investment-backed expectation must be
objectively reasonable.” Colony Cove, 888 F.3d at 452; see
also Connolly v. Pension Ben. Guar. Corp., 475 U.S. 211,
226 (1986). “[W]hat is relevant and important in judging
reasonable expectations is the regulatory environment
at the time of the acquisition of the property.” Bridge
Aina Le’a, LLC v. Land Use Comm’n, 950 F.3d 610, 634
(9th Cir. 2020) (internal quotation marks and citation
omitted). “[T]hose who do business in [a] regulated field
cannot object if the legislative scheme is buttressed by
subsequent amendments to achieve the legislative end.”
Concrete Pipe & Prod. of California, Inc. v. Constr.
Laborers Pension Tr. for S. California, 508 U.S. 602, 645
(1993) (quoting FHA v. The Darlington, Inc., 358 U.S. 84,
91 (1958)) (internal alterations omitted).

Movants argue that Plaintiffs knowingly chose to

invest in the highly-regulated rental housing market,
and that any subjective expectations Plaintiffs may have
had that the regulatory environment would remain static
were and are objectively unreasonable. The City raised,
and this Court rejected, a similar argument in the context
of a Contracts Clause challenge to the same Moratorium
at issue here. See Apartment Ass’n of Los Angeles Cnty.,
Inc. v. City of Los Angeles, 500 F. Supp. 3d 1088, 1095
(C.D. Cal. 2020), aff ’d, 10 F.4th 905 (9th Cir. 2021), cert.
denied, 212 L. Ed. 2d 595, 142 S. Ct. 1699 (2022). Had
Plaintiffs acquired their rental properties in the midst
of the pandemic, Movants’ argument might be more
 19a

Appendix B

compelling. The regulatory environment existing prior

to the pandemic, however, gave Plaintiffs little reason to
expect that they might be barred from evicting tenants
for nonpayment of rent. Bridge Aina Le’a, 950 F.3d at
634. “‘Distinct investment-backed expectations’ implies
reasonable probability, like expecting rent to be paid,
not starry eyed hope of winning the jackpot if the law
changes. A landlord buys land burdened by lease-holds
in order to acquire a stream of income from rents and the
possibility of increased rents or resale value in the future.”
Guggenheim, 638 F.3d at 1120 (emphases added). As this
Court has stated, “the scope and nature of the COVID-19
pandemic, and of the public health measures necessary
to combat it, have no precedent in the modern era, and [ ]
no amount of prior regulation could have led landlords to
expect anything like the blanket Moratorium.” Apartment
Ass’n of Los Angeles, 500 F.Supp. 3d at 1096; see also
Baptiste v. Kennealy, 490 F. Supp. 3d 353, 390 (D. Mass.
2020). The extent to which the Moratorium interferes with
Plaintiffs’ reasonable expectations thus weighs in favor of
a regulatory taking.

3. Character of the Moratorium

“A ‘taking’ may more readily be found when the

interference with property can be characterized as a
physical invasion by government than when interference
arises from some public program adjusting the benefits
and burdens of economic life to promote the common
good.” Penn Central, 438 U.S. at 124. For example, rent
control ordinances intended to shield residents from
 20a

Appendix B

“excessive rent increases,” have been found to constitute

“precisely such a program.” Colony Cove, 888 F.3d at
454. Here, there can be little doubt the Moratorium is
geared toward promoting the common good. Indeed,
the Moratorium is predicated on the City’s findings that
“[t]he COVID-19 pandemic threatens to undermine
housing security and generate unnecessary displacement
of City residents.” (LAMC § 49.99.) There can be little
dispute that, absent the Moratorium’s protections,
significant numbers of tenants with COVID-related loss of
income would have been evicted, resulting not only in the
harms typical of mass displacements, but exacerbating the
spread of COVID-19 as well, to the detriment of all. Other
courts, addressing similar regulations, have reached the
same conclusion. See, e.g., Baptiste, 490 F. Supp. At 390
(D. Mass. 2020); S. California Rental Hous. Ass’n v. Cty.
of San Diego, No. 3:21CV912-L-DEB, 2021 WL 3171919,
at *9 (S.D. Cal. July 26, 2021).

With respect to the “character” factor, Plaintiffs

largely reiterate their argument, rejected above, that
the Moratorium is a per se taking. Beyond that, Plaintiffs
contend in a footnote that, although rent control schemes
may qualify as sufficiently public-oriented, the Moratorium
“is far different and significantly more serious.” (Opp. to
Intervenors’ Mot. at 9 n.5.) Plaintiffs do not, however,
explain how a regulation intended to minimize the
displacement of financially vulnerable tenants in the midst
and as a result of a public health emergency unprecedented
in modern history is less protective of the common good
than are rent control ordinances. As to seriousness, it is
 21a

Appendix B

not clear to the court what bearing the “seriousness” of

the Moratorium has on the public nature of its purpose.
To the extent Plaintiffs intend to emphasize the shifting
of financial burdens from tenants to landlords, the Ninth
Circuit has recognized that commonplace regulations,
including rent control, zoning schemes, and other land use
restrictions, “can also be said to transfer wealth from the
one who is regulated to another.” Yee, 503 U.S. at 529. And,
to the extent Plaintiffs use the word “serious” to refer to
the degree of the Moratorium’s financial effects, they have
failed, as discussed above, to plead any facts establishing
a “serious” economic impact.

4. Balance of Penn Central factors

Plaintiffs have adequately alleged that the Moratorium

has interfered with the reasonable, investment-backed
expectations Plaintiffs had when they acquired their
rental properties. The Complaint does not, however, allege
any diminution in value, let alone a diminution high enough
to function as the equivalent of a classic taking. Because
the Moratorium also indisputably promotes the common
good, the balance of the Penn Central factors weighs
heavily against a determination that the Moratorium
constitutes a regulatory taking.
 22a

Appendix B

IV. Conclusion

For the reasons stated above, the motions to dismiss

are GRANTED. 5 Plaintiffs’ Complaint is DISMISSED,
with leave to amend. Any amended complaint shall be filed
within twenty-one days of the date of this Order.

IT IS SO ORDERED.

Dated: November 17, 2022

/s/
DEAN D. PREGERSON
United States District Judge

5. Having determined that Plaintiffs’ Complaint fails to

allege either a per se or regulatory taking, the court does not reach
the City’s arguments that any takings claims are unripe, or that
Plaintiffs lack standing to assert any such claims.
 23a

Appendix COF DISMISSAL OF

APPENDIX C — JUDGMENT
THE UNITED STATES DISTRICT COURT FOR
THE CENTRAL DISTRICT OF CALIFORNIA,
FILED DECEMBER 29, 2022

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA
Case No. 21-CV-06311 DDP (JEMx)
Honorable Judge Dean D. Pregerson

GHP MANAGEMENT CORPORATION,

A CALIFORNIA CORPORATION, et al.,
Plaintiffs,
vs.
CITY OF LOS ANGELES,
Defendant.

JUDGMENT OF DISMISSAL

Date Action Filed: August 4, 2021

Trial Date: None

This Court, having issued its November 17, 2022 Order

granting the City’s and Intervenors’ Motions to Dismiss
the Complaint of Plaintiffs GHP Management Corporation;
918 Broadway Associates, LLC, dba “Broadway Palace
Apartments;” LR 9th & Broadway, LLC, dba “Broadway
Palace Apartments;” Palmer Temple Street Properties,
LLC, dba “The Da Vinci Apartments;” Palmer/City
 24a

Appendix C

Center II, L.P., dba “The Da Vinci Apartments;” Palmer

Boston Street Properties I, L.P., dba “The Orsini;”
Palmer Boston Street Properties II, L.P., dba “The
Orsini;” Palmer Boston Street Properties III, L.P., dba
“The Orsini;” Bridewell Properties, L.P., dba “Pasadena
Park Place;” Palmer St. Paul Properties, L.P., dba “The
Piero Apartments;” Palmer/Sixth Street Properties,
L.P., dba “The Piero Apartments;” Figter Ltd., dba
“Skyline Terrace Apartments;” Warner Center Summit,
Ltd, dba “Summit at Warner Center;” and Palmer/Third
Street Properties, L.P., dba “The Visconti Apartments”
(collectively, “Plaintiffs”), IT IS ORDERED, ADJUDGED
AND DECREED that Plaintiffs’ Complaint is dismissed
with prejudice pursuant to the Court’s November 17, 2022
Order.

Dated: December 29, 2022

/s/ Dean D. Pregerson

Honorable Dean D. Pregerson
United States District Judge
 25a

Appendix DD
APPENDIX
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
-----------------------------------------------------
Case No. 2:21-cv-06311-DDP-(JEMx)
GHP Management Corporation, a California corporation
918 Broadway Associates, LLC, a Delaware limited liability
company dba “Broadway Palace Apartments;” LR 9th &
Broadway, LLC, a California limited liability company dba
“Broadway Palace Apartments;” Palmer Temple Street
Properties, LLC, a California limited liability company
dba “The Da Vinci Apartments;” Palmer/City Center II,
L.P., a California limited partnership dba “The Da Vinci
Apartments;” Palmer Boston Street Properties I, L.P.,
a Delaware limited partnership dba “The Orsini;” Palmer
Boston Street Properties II, L.P., a Delaware limited
partnership dba “The Orsini;” Palmer Boston Street
Properties III, L.P., a California limited partnership dba
“The Orsini;” Bridewell Properties, L.P., a California
limited partnership dba “Pasadena Park Place;” Palmer
St. Paul Properties, L.P., a California limited partnership
dba “The Piero Apartments;” Palmer/Sixth Street
Properties, L.P., a California limited partnership dba
“The Piero Apartments;” Figter Ltd., a California limited
partnership dba “Skyline Terrace Apartments;” Warner
Center Summit, Ltd, a California limited partnership
dba “Summit at Warner Center;” Palmer/Third Street
Properties, L.P., a California limited partnership dba
“The Visconti Apartments,” plaintiffs,
vs.
City of Los Angeles, and Does 1-25, inclusive, defendants.
-----------------------------------------------------
Date Action Filed: August 4, 2021   Trial Date: Not Set
-----------------------------------------------------
PLAINTIFFS’ NOTICE OF INTENT NOT
TO FILE AN AMENDED COMPLAINT
 26a

Appendix D

TO THE COURT, ALL PARTIES AND THEIR

ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that Plaintiffs GHP
Management Corporation; 918 Broadway Associates,
LLC, dba “Broadway Palace Apartments;” LR 9th &
Broadway, LLC, dba “Broadway Palace Apartments;”
Palmer Temple Street Properties, LLC, dba “The Da
Vinci Apartments;” Palmer/City Center II, L.P., dba “The
Da Vinci Apartments;” Palmer Boston Street Properties I,
L.P., dba “The Orsini;” Palmer Boston Street Properties
II, L.P., dba “The Orsini;” Palmer Boston Street Properties
III, L.P., dba “The Orsini;” Bridewell Properties, L.P.,
dba “Pasadena Park Place;” Palmer St. Paul Properties,
L.P., dba “The Piero Apartments;” Palmer/Sixth Street
Properties, L.P., dba “The Piero Apartments;” Figter
Ltd., dba “Skyline Terrace Apartments;” Warner Center
Summit, Ltd, dba “Summit at Warner Center;” and
Palmer/Third Street Properties, L.P., dba “The Visconti
Apartments” (collectively, “Plaintiffs”), currently do not
intend to file a First Amended Complaint in this action,
but will stand upon the existing pleadings and appeal
the Court’s November 17, 2022 Order (ECF No. 53)
to the Court of Appeals for the Ninth Circuit. To that
end, Plaintiffs respectfully request that a judgment of
dismissal be entered in this action, pursuant to the Court’s
November 17, 2022 Order, so that such Order may be made
final and appealable.
Dated: December 8, 2022 RUTAN & TUCKER, LLP
DOUGLAS J. DENNINGTON
JAYSON PARSONS
By: /s/ Douglas J. Dennington
Douglas J. Dennington
Attorneys for Plaintiffs
 27a

Appendix EE
APPENDIX
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
-----------------------------------------------------
Case No.
GHP Management Corporation, a California corporation
918 Broadway Associates, LLC, a Delaware limited liability
company dba “Broadway Palace Apartments;” LR 9th &
Broadway, LLC, a California limited liability company dba
“Broadway Palace Apartments;” Palmer Temple Street
Properties, LLC, a California limited liability company
dba “The Da Vinci Apartments;” Palmer/City Center II,
L.P., a California limited partnership dba “The Da Vinci
Apartments;” Palmer Boston Street Properties I, L.P.,
a Delaware limited partnership dba “The Orsini;” Palmer
Boston Street Properties II, L.P., a Delaware limited
partnership dba “The Orsini;” Palmer Boston Street
Properties III, L.P., a California limited partnership dba
“The Orsini;” Bridewell Properties, L.P., a California
limited partnership dba “Pasadena Park Place;” Palmer
St. Paul Properties, L.P., a California limited partnership
dba “The Piero Apartments;” Palmer/Sixth Street
Properties, L.P., a California limited partnership dba
“The Piero Apartments;” Figter Ltd., a California limited
partnership dba “Skyline Terrace Apartments;” Warner
Center Summit, Ltd, a California limited partnership
dba “Summit at Warner Center;” Palmer/Third Street
Properties, L.P., a California limited partnership dba
“The Visconti Apartments,” plaintiffs,
vs.
City of Los Angeles, and Does 1-25, inclusive, defendants.
-----------------------------------------------------
Filed: August 4, 2021
-----------------------------------------------------
COMPLAINT
 28a

Appendix E

COMPLAINT FOR:
1) UNCOMPENSATED PER SE PHYSICAL TAKING
IN VIOLATION OF THE 5TH AMENDMENT TO
UNITED STATES CONSTITUTION (42 U.S.C. § 1983);
2) UNCOMPENSATED REGULATORY TAKING
IN VIOLATION OF THE 5TH AMENDMENT TO
UNITED STATES CONSTITUTION (42 U.S.C. § 1983);
AND
3) UNCOMPENSATED TAKING IN VIOLATION
OF ARTICLE I, SECTION 19 OF CALIFORNIA
CONSTITUTION.
JURY TRIAL DEMANDED FOR BOTH LIABILITY
AND DAMAGES PER CITY OF MONTEREY V. DEL
MONTE DUNES MONTEREY, LTD., 526 U.S. 687 (1999)
Plaintiffs GHP MANAGEMENT CORPORATION, a
California corporation; 918 BROADWAY ASSOCIATES,
LLC, a Delaware limited liability company dba “Broadway
Palace Apartments;” LR 9TH & BROADWAY, LLC,
a California limited liability company dba “Broadway
Palace Apartments;” PALMER TEMPLE STREET
PROPERTIES, LLC, a California limited liability
company dba “The Da Vinci Apartments;” PALMER/
CIT Y CENTER II, A CA LIFORNI A LIMITED
PARTNERSHIP, a California limited partnership dba
“The Da Vinci Apartments;” PALMER BOSTON STREET
PROPERTIES I, LP, a Delaware limited partnership dba
“The Orsini;” PALMER BOSTON STREET PROPERTIES
II, LP, a Delaware limited partnership dba “The Orsini;”
PALMER BOSTON STREET PROPERTIES III, A
CALIFORNIA LIMITED PARTNERSHIP, a California
 29a

Appendix E

limited partnership dba “The Orsini;” BRIDEWELL

PROPERTIES, LIMITED, A CALIFORNIA LIMITED
PARTNERSHIP, a California limited partnership
dba “Pasadena Park Place;” PALMER ST. PAUL
PROPERTIES, LP, a Delaware limited partnership dba
“The Piero Apartments;” PALMER/SIXTH STREET
PROPERTIES, L.P., a California limited partnership
dba “The Piero Apartments;” FIGTER LIMITED,
A CA LIFORNI A LIMITED PA RTNERSHIP, a
California limited partnership dba “Skyline Terrace
Apartments;” WARNER CENTER SUMMIT, LTD,, A
CALIFORNIA LIMITED PARTNERSHIP, a California
limited partnership dba “Summit at Warner Center;”
and PALMER/THIRD STREET PROPERTIES, L.P.,
a California limited partnership dba “The Visconti
Apartments,” (collectively, “Plaintiffs”) allege as follows:

INTRODUCTION

1. At the outset of the COVID-19 pandemic (“Pandemic”)

in March 2020, Defendant City of Los Angeles (“City”)
hastily instituted a series of ordinances (the “Eviction
Moratorium”) prohibiting lessors and landlords, such as
Plaintiffs, from bringing unlawful detainer actions against
tenants who refused to pay rent on the grounds that they
had been impacted by the Pandemic.

2. The Eviction Moratorium, among other things,

contains provisions that indefinitely prohibit landlords
and property owners from initiating (or continuing to
prosecute existing) residential eviction proceedings
premised upon the non-payment of rent. Lessors were
(and still are) forbidden not only from commencing eviction
 30a

Appendix E

proceedings for a tenant’s failure to pay contractual rent,

but from charging any late fees or interest to which they
were entitled. Under the Eviction Moratorium, tenants
may continue to occupy their respective premises at no
charge, utilizing the water, power, trash, sewage, and
other fees that the landlords must continue to pay without
reimbursement. By stripping all remedies away from
owners — and without requiring tenants to demonstrate
an inability to pay rent — the Eviction Moratorium
discouraged (and continues to discourage) tenants who
can pay all or some of what they owe from doing so.

3. The Eviction Moratorium also provides tenants

a full twelve months following expiration of the “Local
Emergency Period” — itself a moving target — to repay
back rent, irrespective of the tenant’s ability to pay some
or all rent, the term of the lease, any agreed plan or
schedule for repayment, or any evidence demonstrating
that the tenant will actually be capable of paying back
rent at the expiration of the one-year grace period.
For the vast majority of “qualifying” tenants, the “rent
deferral” provision will operate as rent forgiveness, as it
is unlikely that tenants who do not pay rent during the
Local Emergency Period will be in a position to pay back
rent, in addition to their current rent, at the conclusion of
the grace period (whenever that may be). Indeed, as one
federal District Court has already found, notwithstanding
the provisions in eviction moratoria providing that tenants
remain obligated to pay rent at some distant point in the
future, “this right is largely illusory, as tenants who
have not paid their rent for many months because of
economic distress — or indeed for any other reason —
are unlikely to pay a money judgment against them.”
 31a

Appendix E

Baptiste v. Kennealy, 490 F.Supp.3d 353, 376 (D. Mass.

2020) (emphasis added). Indeed, the Eviction Moratorium
prevents owners, like Plaintiffs, from pursuing their only
available remedy to replace a nonpaying tenant with
a paying tenant. Every month a landlord is prevented
from renting its unit to a paying tenant is a month for
which the landlord has permanently been deprived of
its fundamental right to exclude defaulting tenants from
its property and for which the landlord will be forever
deprived of the ability to mitigate losses by re-letting the
premises to a paying tenant. The Eviction Moratorium
forces owners to allow tenants who have stopped paying
— and may never pay again — to continue to occupy their
units for what will amount to “years” after the initial onset
of the Pandemic.

4. The Eviction Moratorium also fails to address how

a landlord or property owner would actually be able to
collect rent from those tenants, like a substantial number
of Plaintiffs’ tenants, who take advantage of the Eviction
Moratorium, but move to a different location prior to the
expiration of the Eviction Moratorium, or prior to the one-
year grace period afforded to tenants under the Eviction
Moratorium. While owners can theoretically sue such
tenants for back rent at some distant point in the future
(but not ever for any interest or late fees), their likelihood
of actually collecting on a judgment is minimal, at best,
and that assumes the landlord can even locate and serve
the departing tenant by the time landlords are free to
institute collection proceedings against tenants in the
City. As for those tenants who move prior to the time
owners may sue to recover back rent, there is no realistic
chance to recover such rent and, even if there were, the
 32a

Appendix E

owner would incur tremendous (and as a practical matter

unrecoverable) litigation expenses just to recover that to
which the owner is already entitled.

5. The Eviction Moratorium further prohibits all

evictions based on the presence of unauthorized occupants
or pets, as well as for undefined “nuisance[s] related to
COVID-19.”

6. The Eviction Moratorium further indefinitely

prohibits all “no-fault” evictions during the indefinite and
now sustained duration of the Eviction Moratorium, such
as evictions needed for owners intending to withdraw
their properties from the rental market, evictions needed
for owners (or family members) who intend to personally
occupy the premises, and any other “no fault” eviction as
defined in Cal. Civ. Proc. Code § 1946.2(b). The Eviction
Moratorium also indefinitely prohibits “at fault” evictions
such as those needed to eliminate a nuisance if the
nuisance is in any way related to the Pandemic.

7. Plaintiffs are the owners of numerous apartment

communities located within the City, and have suffered
astronomical rent losses and related financial losses
attributable to the Eviction Moratorium. Plaintiffs have
suffered rent losses well in excess of $20 Million, to date,
which losses are anticipated to increase significantly by
the time the Eviction Moratorium, and the one-year grace
periods afforded to tenants, expire. In addition, Plaintiffs
have suffered related financial losses attributable to the
refusal of lending institutions to finance and/or refinance
loans on Plaintiffs’ apartment community properties,
specifically on account of the Eviction Moratorium.
 33a

Appendix E

8. As set forth below, Plaintiffs assert that the Eviction

Moratorium effected an uncompensated taking of private
property in violation of the Fifth Amendment to the
United States Constitution and Article I, Section 19 of the
California Constitution, entitling Plaintiffs to payment of
just compensation in an amount in excess of $100,000,000,
according to proof.

PARTIES

9. Plaintiff GHP MANAGEMENT CORPORATION

is a corporation organized and existing under the laws of
California, and at all relevant times herein, managed (and
currently manages) the apartment communities owned by
the other named Plaintiffs in this action.

10. Plaintiff 918 BROADWAY ASSOCIATES, LLC

is a limited liability company organized and existing
under the laws of the State of Delaware, doing business
as “Broadway Palace Apartments” (“918 Broadway”). 918
Broadway owns fee title to the real property located at
928 S. Broadway, Los Angeles, California 90015, which is
improved with a 413-unit luxury apartment community.
The 918 Broadway apartment community, also known as
“Broadway Palace North,” is located within the City’s
territorial limits and, thus, is subject to the Eviction
Moratorium. Numerous tenants occupying the “Broadway
Palace North” community have taken advantage of the
Eviction Moratorium to withhold payment of rent. As of
the filing of this Complaint, the rent losses suffered by
918 Broadway total approximately $1,353,000. The total
rent losses are anticipated increase significantly by the
time the Eviction Moratorium, and the one-year grace
 34a

Appendix E

period afforded to tenants under the Eviction Moratorium,

expire.

11. Plaintiff LR 9th & BROADWAY LLC is a limited

liability company organized and existing under the laws
of the State of California, doing business as “Broadway
Palace Apartments” (“Broadway”). Broadway owns fee
title to the real property located at 1026 S. Broadway, Los
Angeles, California 90015, which is improved with a 236-
unit apartment community. The apartment community,
also known as “Broadway Palace South,” is located within
the City’s territorial limits and, as such, is subject to the
Eviction Moratorium. Many of the tenants occupying
the “Broadway Palace South” community have taken
advantage of the Eviction Moratorium to withhold payment
of rent during the course of the Pandemic. As of the filing
of this Complaint, the rent losses suffered by Broadway
total approximately $774,000. The total rent losses to
be sustained by Broadway are anticipated to increase
significantly by the time the Eviction Moratorium, and
the one-year grace period afforded to tenants under the
Eviction Moratorium, expire.

1 2 . Pl a i nt i f f PA LM ER T EM PLE ST R EET
PROPERTIES LLC, is a limited liability company
organized and existing under the laws of the State of
California, doing business as “The Da Vinci Apartments”
(“PTSP”). At all relevant times, PTSP owned fee title
to the real property located at 909 W. Temple Street,
Los Angeles, California 90012, which is improved with
a 526-unit apartment community. The PTSP apartment
community, also known as “The Da Vinci,” is located
 35a

Appendix E

within the City’s territorial limits and, as such, is subject

to the Eviction Moratorium. Numerous tenants occupying
The DaVinci took advantage of the Eviction Moratorium
to withhold payment of rent during the course of the
pandemic. As of the filing of this Complaint, the rent losses
suffered by PTSP total approximately $2,766,000. The
total rent losses to be sustained by PTSP are anticipated
to increase significantly by the time the Eviction
Moratorium, and the one-year grace period afforded to
tenants under the Eviction Moratorium, expire.

13. Plaintiff PA LMER/CIT Y CENTER II, A

CA LIFORNI A LIMITED PA RTNERSHIP, is a
California limited partnership organized and existing
under the laws of the State of California, doing business as
“the Medici Apartments” (“Palmer/City Center”). Palmer/
City Center own fee title to the real property located at
722 Bixel Street, Los Angeles, California 90017, which
is improved with a 632-unit apartment community. The
Palmer/City Center apartment community, also known
as “The Medici,” is located within the City’s territorial
limits and, as such, is subject to the Eviction Moratorium.
Numerous tenants occupying The Medici community
took advantage of the Eviction Moratorium to withhold
payment of rent during the course of the pandemic. As
of the filing of this Complaint, the rent losses suffered by
Palmer/City Center total approximately $2,747,000. The
total rent losses to be sustained by Palmer/City Center
are anticipated to increase significantly by the time the
Eviction Moratorium, and the one-year grace period
afforded to tenants under the Eviction Moratorium,
expire.
 36a

Appendix E

14 . Pl a i nt i f f PA L M ER BO S T ON S T R EET
PROPERTIES I, LP, is a limited partnership organized
and existing under the laws of the State of Delaware,
doing business as “The Orsini” (“Palmer Boston Street I”).
Palmer Boston Street I owns fee title to the real property
located at 505 N. Figueroa Street, Los Angeles, California
90012, which is improved with a 296-unit apartment
community. The apartment community, also known as
“Orsini I,” is located within the territorial limits of the
City and, as such, is subject to the Eviction Moratorium.
Numerous tenants occupying the Orsini I community
took advantage of the Eviction Moratorium to withhold
payment of rent during the course of the pandemic and
are continuing to withhold rental payments even today. As
of the filing of this Complaint, the rent losses suffered by
Palmer Boston Street I total approximately $2,796,000.
The total rent losses to be sustained by Palmer Boston
Street I are anticipated to increase significantly by the
time the Eviction Moratorium, and the one-year grace
period afforded to tenants under the Eviction Moratorium,
expire.

15 . Pl a i nt i f f PA L M ER BO S T ON S T R EET
PROPERTIES II, LP, is a limited partnership organized
and existing under the laws of the State of Delaware,
doing business as “The Orsini” (“Palmer Boston Street
II”). Palmer Boston Street II owns fee title to the real
property located at 550 North Figueroa Street, Los
Angeles, California 90012, which is improved with a 566-
unit apartment community. The apartment community,
also known as “Orsini II,” is located within the territorial
limits of the City and, as such, is subject to the Eviction
 37a

Appendix E

Moratorium. Numerous tenants occupying the Orsini II

apartment community took advantage of the Eviction
Moratorium to withhold payment of contractual rent
during the course of the Pandemic. As of the filing of this
Complaint, the rent losses suffered by Palmer/Boston
Street II total approximately $2,925,000. The total rent
losses to be sustained by Palmer/Boston Street II are
anticipated to increase significantly by the time the
Eviction Moratorium, and the one-year grace period
afforded to tenants under the Eviction Moratorium,
expire.

16 . Pl a i nt i f f PA L M ER BO S T ON S T R EET
PROPERTIES III, A CA LIFORNI A LIMITED
PARTNERSHIP is a limited partnership organized
and existing under the laws of the State of California,
doing business as “The Orsini” (“Palmer Boston Street
III”). Palmer Boston Street III owns fee title to the real
property located at 606 North Figueroa Street, Los
Angeles, California, which is improved with a 210-unit
apartment community. The apartment community, also
known as “Orsini III,” is located within the territorial
limits of the City and, as such, is subject to the Eviction
Moratorium. Numerous tenants occupying the Orsini
III community have taken advantage of the Eviction
Moratorium to withhold payment of contractual rent
during the course of the Pandemic. As of the filing of this
Complaint, the rent losses suffered by Palmer Boston
Street III total approximately $1,421,000. The total
rent losses to be sustained by Palmer Boston Street III
are anticipated to increase significantly by the time the
Eviction Moratorium, and the one-year grace period
 38a

Appendix E

afforded to tenants under the Eviction Moratorium,

expire.

17. Plaintiff BRIDEWELL PROPERTIES, LIMITED,

A CALIFORNIA LIMITED PARTNERSHIP is a limited
partnership organized and existing under the laws of the
State of California, doing business as “Pasadena Park
Place” (“Bridewell”). Bridewell owns fee title to the real
property located at 101 Bridewell Street, Los Angeles,
California 90042, which is improved with a 128-unit
apartment community. The apartment community is
located within the territorial limits of the City and, as
such, is subject to the Eviction Moratorium. Numerous
tenants occupying the apartment community have taken
advantage of the Eviction Moratorium to withhold payment
of contractual rent during the course of the Pandemic. As
of the filing of this Complaint, the total rent losses suffered
by Bridewell exceeds $74,000. The total rent losses to
be sustained by Bridewell is anticipated to increase
significantly by the time the Eviction Moratorium, and
the one-year grace period afforded to tenants under the
Eviction Moratorium, expire.

18. Plaintiff PALMER ST. PAUL PROPERTIES,

LP, is a limited partnership organized and existing under
the laws of the State of Delaware, doing business as “The
Piero Apartments” (“Palmer St. Paul”). Palmer St. Paul
owns fee title to the real property located at 616 South
St. Paul Avenue, Los Angeles, California 90017, which
is improved with a 225-unit apartment community. The
apartment community, also known as “Piero I,” is located
within the City and, as such, is subject to the Eviction
 39a

Appendix E

Moratorium. Numerous tenants occupying the apartment

community have taken advantage of the Eviction
Moratorium to withhold payment of rent during the
course of the Pandemic. As of the filing of this Complaint,
the total rent losses suffered by Palmer St. Paul exceed
$1,213,000. The total rent losses to be sustained by the
Palmer St. Paul are anticipated to increase significantly
by the time the Eviction Moratorium, and the one-year
grace period afforded to tenants under the Eviction
Moratorium, expire.

1 9 . P l a i n t i f f PA L M E R / S I X T H S T R E E T
PROPERTIES, L.P., is a limited partnership organized
and existing under the laws of the State of California,
doing business as “The Piero Apartments” (“Palmer/
Sixth Street”). Palmer/Sixth Street owns fee title to
the real property located at 609 St. Paul Avenue, Los
Angeles, California 90017, which is improved with a 335-
unit apartment community. The apartment community,
also known as “Piero II,” is located within the City and,
as such, is subject to the Eviction Moratorium. Numerous
tenants occupying the Piero II community have taken
advantage of the Eviction Moratorium to withhold the
payment of contractual rent during the course of the
Pandemic. As of the filing of this Complaint, the total rent
losses suffered by Palmer/Sixth Street exceed $1,432,000.
The total rent losses to be sustained by Palmer/Sixth
Street are anticipated to increase significantly by the
time the Eviction Moratorium, and the one-year grace
period afforded to tenants under the Eviction Moratorium,
expire.
 40a

Appendix E

20. Plaintiff FIGTER LIMITED, A CALIFORNIA

LIMITED PARTNERSHIP is a limited partnership
organized and existing under the laws of the State
of California, doing business as “Skyline Terrace
Apartments” (“Figter”). Figter owns fee title to the real
property located at 930 Figueroa Terrace, Los Angeles,
California 90012, which is improved with a 198-unit
apartment community. The apartment community, also
known as “Skyline Terrace,” is located within the City
and, as such, is subject to the Eviction Moratorium. As
of the filing of this Complaint, the rent losses suffered by
Figter total approximately $400,000. The total rent losses
to be sustained by Figter are anticipated to increase
significantly by the time the Eviction Moratorium, and
the one-year grace period afforded to tenants under the
Eviction Moratorium, expire.

21. Plaintiff WARNER CENTER SUMMIT, LTD.,

A CALIFORNIA LIMITED PARTNERSHIP is limited
partnership organized and existing under the laws of the
State of California, doing business as “Summit at Warner
Center” (“Summit”). Summit owns fee title to the real
property located at 22219 Summit Vue Lane, Woodland
Hills, California 91367, which is improved with a 760-
unit apartment community. The apartment community,
also known as “Summit at Warner Center,” is located
within the Woodland Hills community in the territorial
limits of the City and, as such, is subject to the Eviction
Moratorium. Numerous tenants occupying units within
the Summit at Warner Center have taken advantage
of the Eviction Moratorium to withhold the payment of
contractual rent during the course of the Pandemic. As
 41a

Appendix E

of the filing of this Complaint, the rent losses suffered

by Summit total approximately $3,895,000. The total
rent losses to be sustained by Summit are anticipated to
increase significantly by the time the Eviction Moratorium,
and the one-year grace period afforded to tenants under
the Eviction Moratorium, expire.

2 2 . P l a i n t i f f PA L M E R / T H I R D S T R E E T
PROPERTIES, L.P., is a limited partnership organized
and existing under the laws of the State of California,
doing business as “The Visconti Apartments” (“Palmer/
Third Street”). Palmer/Third Street owns fee title to
the real property located at 1221 West 3rd Street, Los
Angeles, California 90017, which is improved with a 297-
unit apartment community. The apartment community,
known as “The Visconti,” is located within the City and,
as such, is subject to the Eviction Moratorium. Numerous
tenants have taken advantage of the Eviction Moratorium
to withhold the payment of contractual rent during the
course of the Pandemic. As of the filing of this Complaint,
the rent losses suffered by Palmer/Third Street total
approximately $982,000. The total rent losses to be
sustained by the Palmer/Third Street are anticipated to
increase significantly by the time the Eviction Moratorium,
and the one-year grace period afforded to tenants under
the Eviction Moratorium, expire.

The Defendants

23. Defendant City of Los Angeles is a charter city

organized and existing under the laws of the State of
California.
 42a

Appendix E

24. Plaintiffs do not know the true names and capacities

of Defendants Does 1 through 25, inclusive, and therefore
sues them by their fictitious names. Plaintiffs allege that
Defendants Does 1 through 25, inclusive, are jointly,
severally and/or concurrently liable and responsible for
the injuries set forth herein, acting on their own or as the
agents of named Defendants. Plaintiffs will amend this
Complaint to insert the true names of the fictitiously-
named Defendants when the same are ascertained.

25. Plaintiffs are informed and believe and thereon

allege that each Defendant was the agent and/or employee
of every other Defendant, and at all times relevant hereto
was acting within the course and scope of said agency and/
or employment.

JURISDICTION AND VENUE

26. The Court has subject matter jurisdiction over

this action pursuant to 28 U.S.C. § 1331 because the action
arises under 42 U.S.C. § 1983 in relation to Defendants’
deprivation of Plaintiffs’ constitutional rights under the
Fifth and Fourteenth Amendments to the United States
Constitution.

27. The Court has supplemental jurisdiction over

Plaintiffs’ claims asserted under the Constitution of the
State of California pursuant to 28 U.S.C. § 1367(a), because
Plaintiffs’ state constitutional claims arise from the same
nucleus of operative facts as its federal claims and thus
form part of the same case or controversy under Article
III of the United States Constitution.
 43a

Appendix E

28. The Central District of California is the appropriate

venue for this action pursuant to 28 U.S.C. § 1391(b)
(1) and (2), because it is a District in which Defendants
reside, maintain offices, exercise their authority in their
official capacities, and have enforced the orders at issue
in this case. While the Central District of California is
an appropriate venue for this action by statute, given
the sweeping breadth of the Eviction Moratorium and
the strong likelihood that a significant portion of the
jury pool have been personally impacted by the Eviction
Moratorium, Plaintiffs have filed this proceeding in the
Central District of California, without waiver of their right
to apply for a change in venue, if appropriate.

FACTUAL ALLEGATIONS

State and Local Government Response to

Pandemic Re Evictions

29. During the early days of the Pandemic, the State

and local governments enacted a flurry of executive orders
and regulations relating to evictions, as alleged in more
detail herein below.

The State’s Response

30. On March 4, 2020, Governor Newsom issued

a “State of Emergency” Order to address the threat
of the spread of the Pandemic throughout California’s
communities.

31. On March 16, 2020, Governor Newsom issued

Executive Order N-28- 20 authorizing local governments
 44a

Appendix E

to halt evictions of tenants. In relevant part, the Order

suspended provisions of state law that would “preempt
or otherwise restrict a local government’s exercise of its
police power to impose substantive limits on residential
or commercial evictions,” but only to the extent that “[t]he
basis for the eviction is nonpayment of rent . . . arising out
of a substantial decrease in household or business income”
caused by the Pandemic or the government response
thereto. The Order also required that the decrease in
income be “documented.” The Order initially provided
that such protections would only be in effect through May
31, 2020.

32. On March 27, 2020, Governor Newsom issued

Executive Order N-37-20 restricting evictions though
May 31, 2020, if certain conditions are met, including that
the tenant has notified the landlord in writing of their
“inability to pay the full amount due to reasons related
to COVID-19,” within 7 days of the date the rent is due.
The Order also required that tenants retain “verifiable
documentation” explaining their changed financial
circumstances, as an affirmative defense to an unlawful
detainer action.

33. On May 29, 2020, Governor Newsom issued

Executive Order No. N-66-20, extending the eviction
protections for an additional 60 days.

34. On June 30, 2020, Governor Newsom issued

Executive Order N-71-20, extending the timeframe for
the protections provided by N-28-20 that authorized local
governments to halt evictions for renters impacted by
 45a

Appendix E

COVID-19 through September 30, 2020.

35. On September 1, 2020, Governor Newsom signed

Assembly Bill 3088 (“AB 3088”) providing that, among
other things, residential tenants who are unable to pay
rent between March 1, 2020, and January 31, 2021, due
to financial distress related to COVID-19 are protected
from eviction, pursuant to certain requirements. AB 3088
provided that landlords could bring unlawful detainer
actions against nonpaying tenants as of October 5, 2020,
if a tenant failed to deliver a declaration stating their
inability to pay due to COVID-19 distress. Furthermore,
AB 3088 required that residential tenants must, by
January 31, 2021, pay at least 25 percent of rent owed
for the months of October 2020 through January 2021.
Finally, AB 3088 provided that actions adopted by local
governments between August 19, 2020, and January 31,
2021, to protect residential tenants from eviction due to
financial hardship related to COVID-19 are temporarily
preempted, where such actions would not become effective
until February 1, 2021.

36. On January 29, 2021, Governor Newsom signed

Senate Bill 91 (“SB 91”) into law, which extended AB
3088’s eviction protections through June 30, 2021, as well
as the temporary preemption of a local jurisdiction’s ability
to enact new or amend existing eviction protections.

37. On June 28, 2021, Governor Newsom signed

Assembly Bill 832 (“AB 832”), further extending the
Statewide Moratorium through September 30, 2021.
 46a

Appendix E

38. Pursuant to AB 3088, SB 91, and AB 832, tenants

taking advantage of the statewide eviction moratorium
are required to declare, under penalty of perjury, that
they have been financially impacted by the Pandemic to
the point where they are unable to pay rent. In addition,
tenants must pay, on or before September 30, 2021, 25%
of their rental obligations that arose between September
1, 2020 and September 30, 2021.

The City’s Response

39. On March 15, 2020, Los Angeles Mayor Eric

Garcetti issued a Public Order under the City of Los
Angeles’s Emergency Authority entitled “New City
Measures to Address COVID-19.” Among other things,
the Mayor’s Order mandated that “no landlord shall evict
a residential tenant in the City of Los Angeles during this
local emergency period if the tenant is able to show an
inability to pay rent due to circumstances related to the
COVID-19 pandemic.” The Mayor’s Order additionally
provided that such circumstances include “loss of income
due to a COVID-19 related workplace closure, child
care expenditures due to school closures, health care
expenses related to being ill with COVID-19 or caring
for a member of the tenant’s household who is ill with
COVID-19, or reasonable expenditures that stem from
government-ordered emergency measures.” There were
no provisions mandating any sort of documentation be
retained by tenants who claim an inability to pay rent due
to COVID-19. Nor were there any protections provided
for landlords or property owners rightfully attempting to
continue collecting rent.
 47a

Appendix E

40. On March 27, 2020, the City Council for Defendant

City of Los Angeles enacted Ordinance No. 186585 (“City
Moratorium”) mandating a “temporary”1 moratorium
on evictions for non-payment of rent for tenants who are
unable to pay rent due to circumstances related to the
COVID-19 pandemic.

41. On March 31, 2020, the City Moratorium was

signed by the Mayor on March 31, 2020, but retroactively
applied to “non-payment eviction notices, no-fault eviction
notices, and unlawful detainer actions based on such
notices, served or filed on or after March 4, 2020.” The
City Moratorium applies to both commercial real property
and residential real property, both of which are broadly
defined in the ordinance. The City Moratorium is not set
to expire until “the end of the Local Emergency period.”
The Local Emergency period is defined as the period of
time from March 4, 2020 to the end of the local emergency
as declared by the Mayor.

42. On May 6, 2020, the City enacted Ordinance No.

186606 as an update to the City Moratorium. The update
includes a prohibition on the influencing or attempting
to influence, “through fraud, intimidation or coercion, a
residential tenant to transfer or pay to the Owner any
sum received by the tenant as part of any government
relief program.”

1. The word “temporary” is somewhat misleading, as the

Eviction Moratorium has no specified end date, and extends certain
protections an additional 12-months beyond the “end of the Local
Emergency.”
 48a

Appendix E

43. Importantly, when Governor Newsom signed into

law the statewide moratorium, as originally adopted in
AB 3088 and extended by way of SB 91 and AB 832, the
City took the position that the City’s Eviction Moratorium
would control and that tenants residing in the City
were not required to meet the attestation requirements
and payment obligations embodied in the statewide
moratorium. The City did so on account of the fact that
the statewide moratoria did not preempt local moratoria
in effect as of August 20, 2020.

The California Courts’ Response

44. On April 6, 2020, the California Judicial Council,

the policymaking body of the California courts, issued
temporary measures, including Rules 1 and 2, which
effectively prohibited the bringing of unlawful detainer
actions and judicial foreclosures. This independent
eviction moratorium expired on September 1, 2020.

The Present State of the City’s Eviction Moratorium

45. The Eviction Moratorium at issue here continue

to effectively precludes residential evictions, resulting in
persistent physical occupation by defaulting tenants, as
alleged in more detail herein below.

46. The Eviction Moratorium presently prohibits

landlords from terminating tenancies based on (1) non-
payment of rent due to COVID-19 related inability to
pay (without requiring documentation of such inability);
(2) any “no fault” reason for termination; (3) certain
lease violations related to unauthorized occupants,
 49a

Appendix E

unauthorized pets, and nuisance; and (4) the Ellis Act2 .

The ordinance also allows for an extended repayment
schedule–giving tenants up to 12-months after the end of
the Local Emergency to repay the delayed rent, without
any interest or late penalties having accrued. 3 Further,
while it provides that tenants “may” agree to a repayment
plan, they are not required to do so. Thus, a tenant who
fails to pay rent during the emergency period can refuse
to pay any of that back rent for another full year after
the emergency order is lifted, before the landlord has
any recourse. Nevertheless, the Eviction Moratorium
purports to compel landlords and property owners to
continue paying for the tenants’ utilities, and to continue
maintaining secure and habitable living units pursuant to
the terms of the leases. The Eviction Moratorium fails to
provide any protection for the property owners who are
unable to pay their mortgages, utilities and operating
expenses needed to continue providing habitable units to
their tenants.

47. While the Eviction Moratorium ostensibly protects

tenants who are unable to pay rent due to circumstances
related to the COVID-19 pandemic, it arbitrarily shifts
the financial burden onto property owners, many of whom
were already suffering financial hardship as a result of the
Pandemic and have no equivalent remedy at law.

2. Landlords are prohibited from removing any occupied units

from the rental market as would otherwise be allowed by the Ellis
Act until 60 days after the end of the Local Emergency period.
3. The ordinance prohibits an owner from charging interest
or a late fee on rent not paid under its provisions.
 50a

Appendix E

48. Notably, the Eviction Moratorium does not require

tenants to provide notice of COVID-19-related inability
to pay to the landlord or to provide documentation to
the landlord. While the City provides an optional form
tenants can use to notify their landlords of a COVID-
19-related inability to pay, the form is not mandatory.
The City Moratorium nonetheless prohibits owners from
endeavoring to evict any tenant with such an inability, in
addition to providing that qualifying inability to pay serves
as an affirmative defense to eviction for nonpayment.

49. The Eviction Moratorium fails to provide any

tribunal or mechanism by which property owners and
landlords may challenge a tenant’s claimed “inability to
pay,” effectively forcing property owners to accept such
claims without question. Indeed, the City Council did
everything in its power to eliminate all judicial or non-
judicial remedies available to property owners.

The City also created a private right of action in favor

of tenants only, which allows tenants to sue their landlords
for violating the Eviction Moratorium, after providing
notice to the landlord and 15-day period to cure the
violation. A tenant may bring an action for civil penalties
of up to $10,000 per violation (plus up to an additional
$5,000 if the tenant is senior citizen or disabled). The
private right of action applies from May 12, 2020 forward.
Thus, while landlords have been stripped of all remedies
and any tribunal to adjudicate grievances, such as a court
to protect their rights, tenants are free to go to court to
assert monetary claims against their landlords.
 51a

Appendix E

The Eviction Moratorium Has Resulted in

Severe Hardship to Plaintiffs

50. Plaintiffs own and operate 12 multifamily

complexes throughout the City of Los Angeles. As of the
date of filing, Plaintiffs’ tenants are in arrears to the
tune of nearly $20,000,000. Plaintiffs anticipate that this
amount will at least triple by the time the City’s Eviction
Moratoria, and one-year grace period, expire.

51. Plaintiffs contend that the Eviction Moratorium has

actually and proximately caused rent losses in the amount
of nearly $20 million, to date. Had Plaintiffs retained the
ability to institute unlawful detainer proceedings against
any tenants that failed to timely pay per their contractual
agreements, these losses would be minimal. Plaintiffs
would also have been able to replace defaulting tenants
with other, paying tenants. Presently, however, Plaintiffs
have been required to allow defaulting tenants to accrue
millions of dollars in back rents, and have been prevented
from physically removing any defaulting tenants and
replacing them with paying tenants. In adopting the
Eviction Moratoria, the City fully understood that
tenants would not have the means to pay all back rent (to
the tune of tens of thousands of dollars) by the time the
Eviction Moratoria and one-year grace period expired.
Indeed, Plaintiffs are informed and believed, and based
thereon allege, that the City orchestrated a regulatory
regime designed to provide a compulsory and de facto
rent forgiveness to be foisted on landlords throughout the
City, including Plaintiffs.
 52a

Appendix E

52. Each month that the Eviction Moratorium

remains operative, Plaintiffs will continue to suffer lost
rents as tenants continue to fail to pay, in conjunction
with Plaintiffs’ inability to physically remove defaulting
tenants.

53. In addition to rent losses, Plaintiffs have also

suffered on the order of several millions of dollars in lost
interest and late fees as a direct result of the Eviction
Moratorium.

54. Plaintiffs have also suffered related financial

losses attributable to the refusal of lending institutions
to finance and/or refinance loans on Plaintiffs’ apartment
community properties, specifically on account of the
Eviction Moratorium.

55. Plaintiffs are informed and believe and on that basis

allege that they have suffered several millions of dollars
in damages to their properties based on the Eviction
Moratorium’s compulsory mandate that Plaintiffs allow
unauthorized individuals and pets, without limitation, to
occupy Plaintiffs’ properties against the will of Plaintiffs.

56. The Eviction Moratorium has resulted in a severe

diminution in value of Plaintiffs’ properties in an amount
to be proven at trial.
 53a

Appendix E

FIRST CLAIM FOR RELIEF

Uncompensated Per Se Physical Taking in Violation

of the Fifth Amendment to the United States
Constitution – 42 U.S.C. § 1983
(By Plaintiffs against All Defendants)

57. Plaintiffs incorporate herein by reference each and

every allegation contained in the preceding paragraphs of
this Complaint as though fully set forth herein.

58. The Takings Clause of the Fifth Amendment to

the United States Constitution, made applicable to the
States through the Fourteenth Amendment, provides
that private property shall not “be taken for public use,
without just compensation.” The purpose of the Takings
Clause is to “bar [] Government from forcing some people
alone to bear the public burdens which, in all fairness
and justice, should be borne by the public as a whole.”
Lingle v. Chevron Corp., 544 U.S. 528, 537 (2005) (quoting
Armstrong v. United States, 364 U.S. 40, 49 (1960)).

59. “When the government physically acquires private

property for a public use, the Takings Clause imposes a
clear and categorical obligation to provide the owner with
just compensation.” Cedar Point Nursery v. Hassid, 141
S. Ct. 2063, 2071 (2021). As the Supreme Court recently
reaffirmed, the government commits a physical taking
when it either “formally condemn[s] property,” “physically
takes possession of property without acquiring title to
it,” or “when it occupies property.” Id. “These sorts of
physical appropriations constitute the clearest sort of
 54a

Appendix E

taking, and [courts] assess them using a simple, per se

rule: The government must pay for what it takes.” Id.
(citations and quotation marks omitted). This rule applies
with equal vigor regardless of whether the government
“appropriat[es] private property for itself or a third party.”
Id.

60. The Supreme Court has also repeatedly reaffirmed

that any “public benefit” derived from a physical taking is
simply not relevant to a court’s takings analysis: “[O]ur
cases uniformly have found a taking to the extent of the
occupation, without regard to whether the action achieves
an important public benefit or has only minimal impact
on the owner.” Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419, 435 (1982).

61. The Ordinances here fall squarely within the

“physical occupation” line of cases the United States
Supreme Court has consistently held to constitute per se
categorical takings for which the government “must pay
for what it takes.” Cedar Point Nursery, 141 S. Ct. at 2071.
The Eviction Moratorium requires that Plaintiffs continue
furnishing their properties — indefinitely — to defaulting
and nonpaying tenants. Plaintiffs have no effective ability
to mitigate losses or oust those in default. By precluding
Plaintiffs’ historic right to institute unlawful detainer
proceedings, Defendants have deprived Plaintiffs of the
means to physically remove defaulting tenants from their
properties. Defendants have thus stripped from Plaintiffs
the fundamental right to exclude — a right that “is ‘one
of the most treasured’ rights of property ownership.” Id.
at 2072 (quoting Loretto, 458 U.S. at 435). The Eviction
 55a

Appendix E

Moratorium thus constitutes “government-authorized

physical invasions . . . requiring just compensation.” Id.
at 2073.

62. While the landlord-tenant relationship has

historically been the subject of regulation, property
owners have never been subject to regulations requiring
persistent and indefinite occupation by defaulting and
nonpaying tenants.

63. Separate from the indefinite eviction prohibitions,

the Eviction Moratorium has also forced Plaintiffs to
accept unauthorized pets and family members into units,
even where mutually agreed-upon leases prohibit pets and
additional occupants. Such provisions constitute a distinct
and independent per se physical taking under Loretto,
458 U.S. at 434–36. It is irrelevant that unauthorized
pets and family members may only be temporary
occupants because, under the Takings Clause, “physical
appropriation is a taking whether it is permanent or
temporary.” Cedar Point Nursery, 141 S. Ct. at 2074; see
also id. at 2074–75 (collecting cases).

64. In short, the Eviction Moratorium constitutes the

functional equivalent of the Defendants commandeering
private property under the purported public purpose of
providing housing to tenants affected by the fallout from
COVID-19. The Eviction Moratorium and the enforcement
thereof have caused a physical taking of Plaintiffs’
property without just compensation as required under
the Takings Clause of the Fifth Amendment to the U.S.
Constitution. This, in turn, has caused proximate and legal
harm to Plaintiffs.
 56a

Appendix E

65. The United States Supreme Court has repeatedly

acknowledged that takings liability under the Fifth
Amendment to the United States Constitution may be
redressed under 42 U.S.C. § 1983.

66. Under 28 U.S.C. § 2201, Plaintiffs are entitled to

declaratory relief determining that the City’s Ordinances
effect a taking of private property under the Takings
Clause of the Fifth Amendment to the United States
Constitution.

67. Plaintiffs found it necessary to engage the services

of private counsel to vindicate their rights under the law.
Plaintiffs are therefore entitled to an award of attorney’s
fees and litigation expenses pursuant to 42 U.S.C. § 1988.

SECOND CLAIM FOR RELIEF

Uncompensated Regulatory Taking in Violation

of the Fifth Amendment to the United States
Constitution – 42 U.S.C. § 1983
(By Plaintiffs against All Defendants)

68. Plaintiffs incorporate herein by reference each and

every allegation contained in the preceding paragraphs of
this Complaint as though fully set forth herein.

69. The Eviction Moratorium also constitutes a

regulatory taking under the test embodied in Penn
Central Transp. Co. v. New York City, 438 U.S. 104, 124
(1978). To determine whether a governmental action
effects a taking under Penn Central, courts weigh (1)
 57a

Appendix E

“the economic impact of the regulation;” (2) “the extent

to which the regulation has interfered with distinct
investment-backed expectations;” and (3) “the ‘character
of the governmental action.’” Lingle, 544 U.S. at 537
(quoting Penn Central Transp. Co., 438 U.S. at 124). This
three-part inquiry is “essentially ad hoc,” but “turns in
large part, albeit not exclusively, upon the magnitude of
a regulation’s economic impact and the degree to which
it interferes with legitimate property interests.” Lingle,
544 U.S. at 540.

70. The Eviction Moratorium and the enforcement

thereof have caused a regulatory taking of Plaintiffs’
property without just compensation in violation of the
Takings Clause of the Fifth Amendment to the U.S.
Constitution.

71. First, the economic impact of the Eviction

Moratorium is severe and ruinous to Plaintiffs, who are
contractually entitled to receive rent from tenants on
a monthly basis and cannot long survive if tenants are
permitted to continue occupying the properties rent-free
for a sustained and indefinite period of time. Indeed,
Plaintiffs’ tenants are over $20 million in arrears, to date.
The Eviction Moratorium effectively prevents Plaintiffs
from bringing unlawful detainer actions to oust nonpaying
tenants and mitigate further losses.

72. Second, the Eviction Moratorium has undermined

Plaintiffs’ “reasonable investment-backed expectations.”
Plaintiffs developed and/or purchased their properties
with the “objectively reasonable” expectation that they
would be able to charge rent for units and have legal
 58a

Appendix E

recourse if tenants failed to pay rent when contractually

due. See Bridge Aina Le’a, LLC v. Land Use Comm’n,
950 F.3d 610, 634–35 (9th Cir. 2020) (distinct investment-
backed expectations must be “objectively reasonable” and
“unilateral expectation[s]’or ‘abstract need[s]’ cannot form
the basis of a claim that the government has interfered
with property rights”). In fact, Plaintiffs made these
business investments against the backdrop of California’s
unlawful detainer statutory scheme designed to resolve
disputes between owners and defaulting tenants in an
orderly, efficient and expeditious manner. Cf. Guggenheim
v. City of Goleta, 638 F.3d 1111, 1120 (9th Cir. 2010) (en
banc).

73. Fu r ther, whi le the Ev iction Morator ium

theoretically allows Plaintiffs to eventually attempt to
collect unpaid rents, the ability to actually recover such
back rent from cash-strapped tenants is illusory, at best.
In addition, the Eviction Moratorium bans Plaintiffs
from recovering any interest or late fees on missed rent,
thereby depriving Plaintiffs of the constitutional right to
the time value of money. Cf. Fowler v. Geurin, 899 F.3d
1112, 1118–19 (9th Cir. 2018) (“Because the right to daily
interest is deeply ingrained in our common law tradition,
this property interest is protected by the Takings
Clause[.]”).

74. Finally, the “character of governmental action”

is tantamount to a physical invasion of private property.
Lingle, 544 U.S. at 537. The Eviction Moratorium
effectively requires that Plaintiffs allow their tenants
to continue to occupy their properties free of charge
 59a

Appendix E

and requires Plaintiffs to allow their tenants to remain

in possession for the foreseeable future. Indeed, courts
look to whether a regulation constitutes a “physical
invasion” of private property to inform the analysis for
this factor. See Penn Central Transport Co., 438 U.S. at
124 (noting that “[a] ‘taking’ may be more readily found
when the interference with property can be characterized
as a physical invasion by government”); see also Andrus
v. Allard, 444 U.S. 51, 65–66 (1979) (opining that the
regulation upheld there “d[id] not compel the surrender of
the artifacts, and there is no physical invasion or restraint
upon them”).

75. Furthermore, as both the Central District of

California and other courts have recognized in similar
contexts, the Eviction Moratorium here, and those like it,
are simply unprecedented and extreme by any measure.
See, e.g., Apartment Ass’n of L.A. Cty., Inc. v. City of Los
Angeles, No. CV 20-05193 DDP (JEMx), 500 F.Supp.3d
1088, 1096 (in a separate legal challenge to the City’s
ordinance, the court noted that “no amount of prior
regulation could have led landlords to expect anything
like the blanket Moratorium”); Baptiste, 490 F.Supp.3d at
384 (“a reasonable landlord would not have anticipated . . .
a ban on even initiating eviction actions against tenants
who do not pay rent and on replacing them with tenants
who do”).

76. In sum, the Eviction Moratorium does not merely

“adjust[] the benefits and burdens of economic life to
promote the common good,” Penn Central Trans. Co., 438
U.S. at 124, but instead effect a compensable taking. As
 60a

Appendix E

a result, the City’s violation of the Takings Clause of the

Fifth Amendment has caused proximate and legal harm
to Plaintiffs.

77. Plaintiffs are entitled to recover just compensation

for the taking of private property, and any and all other
damages under 42 U.S.C. § 1983.

78. Plaintiffs found it necessary to engage the services

of private counsel to vindicate their rights under the law.
Plaintiffs are therefore entitled to an award of attorney’s
fees and litigation expenses pursuant to 42 U.S.C. § 1988.

THIRD CLAIM FOR RELIEF

Uncompensated Taking in Violation of Article I,

Section 19 of the California Constitution
(By Plaintiffs against All Defendants)

79. Plaintiffs incorporate herein by reference each and

every allegation contained in the preceding paragraphs of
this Complaint as though fully set forth herein.

80. Like the federal Takings Clause embodied in the

Fifth Amendment to the United States Constitution,
Article I, § 19 of the California Constitution proscribes
the “taking or damaging” of private property for public
use unless “just compensation” has “first been paid to, or
into court for, the owner.”

81. The Takings Clause embodied in Article I,

Section 19 of the California Constitution, at least with
 61a

Appendix E

respect to the merits of regulatory taking claims, has

been interpreted congruently with the Takings Clause
embodied in the Fifth Amendment to the United States
Constitution. Cf. San Remo Hotel L.P. v. City and Cty. of
San Francisco, 27 Cal.4th 643, 672–79 (2002) (California
Supreme Court relying on physical and regulatory takings
decisions interpreting federal takings claims to evaluate
takings claim asserted under California Constitution).

82. The Eviction Moratorium constitutes a taking or

damaging of private property without just compensation
in violation of Article I, Section 19 of the California
Constitution.

83. Plaintiffs are entitled to payment of “just

compensation” for the taking pursuant to Article I, Section
19 of the California Constitution.

84. Plaintiffs found it necessary to engage the services

of private counsel to vindicate their rights under the law.
Plaintiffs are therefore entitled to an award of attorney’s
fees and litigation expenses pursuant to Cal. Code Civ.
Proc. § 1036.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for an order and

judgment against Defendants, and each of them, as follows
as to all causes of action:

1. A determination that Defendants’ Eviction

Moratorium and related actions effected an uncompensated
 62a

Appendix E

taking of private property, entitling Plaintiffs’ to an award

of “just compensation” in an amount to be determined by
jury;

2. Award Plaintiffs damages arising out of their

Section 1983 and constitutional claims, and specifically
“just compensation” under the Fifth and Fourteenth
Amendments to the United States Constitution, and under
Article I, section 19 of the California Constitution;

3. Award Plaintiffs their costs and reasonable

attorney’s fees and litigation expenses incurred in this
action pursuant to 42 U.S.C. § 1988 and Cal. Code Civ.
Proc. § 1036; and

4. Grant all other such relief to Plaintiffs as the Court

may deem proper and just.

Dated: August 4, 2021 RUTAN & TUCKER, LLP

DOUGLAS J. DENNINGTON
JAYSON PARSONS
By: /s/ Douglas J. Dennington
Douglas J. Dennington
Attorneys for Plaintiffs
 63a

Appendix F —
APPENDIX
RELEVANT STATUTORY PROVISIONS

ARTICLE 14.6
TEMPORARY PROTECTION OF TENANTS
DURING COVID-19 PANDEMIC

(Added by Ord. No. 186,585, Eff. 3/31/20; Amended in

Entirety by Ord. No. 186,606, Eff. 5/12/20.)

Section
49.99 Findings.
49.99.1 Definitions.
49.99.2 Prohibition on Residential Evictions.
49.99.3 Prohibition on Commercial Evictions.
49.99.4 Prohibition on Removal of Occupied
Residential Units. 49.99.5 Retroactivity.
49.99.6 Affirmative Defense.
49.99.7 Private Right of Action for Residential
Tenants.
49.99.8 Penalties.
49.99.9 Severability.

SEC. 49.99. FINDINGS.

The City of Los A ngeles is exper iencing an

unprecedented public health crisis brought by the
Coronavirus, which causes an acute respiratory illness
called COVID-19.

On March 4, 2020, the Governor of the State of

California declared a State of Emergency in California
as result of the COVID-19 pandemic. That same day, the
Mayor also declared a local emergency.
 64a

Appendix F

On March 16, 2020, the Governor issued Executive

Order N-28-20, which authorizes local jurisdictions to
suspend certain evictions of renters and homeowners,
among other protections. The Executive Order further
authorizes the City of Los Angeles to implement additional
measures to promote housing security and stability to
protect public health and mitigate the economic impacts
of the COVID-19 pandemic.

The economic impacts of COVID-19 have been

significant and will have lasting repercussions for the
residents of the City of Los Angeles. National, county,
and city public health authorities issued recommendations,
including, but not limited to, social distancing, staying
home if sick, canceling or postponing large group events,
working from home, and other precautions to protect public
health and prevent transmission of this communicable
virus. Residents most vulnerable to COVID-19, including
those 65 years of age or older, and those with underlying
health issues, have been ordered to self-quarantine, self-
isolate, or otherwise remain in their homes. Non-essential
businesses have been ordered to close. More recent orders
from the Governor and the Mayor have ordered people to
stay at home and only leave their homes to visit or work
in essential businesses. As a result, many residents are
experiencing unexpected expenditures or substantial loss
of income as a result of business closures, reduced work
hours, or lay-offs related to these government-ordered
interventions. Those already experiencing homelessness
are especially vulnerable during this public health crisis.
 65a

Appendix F

The COVID-19 pandemic threatens to undermine

housing security and generate unnecessary displacement
of City residents and instability of City businesses.
Therefore, the City of Los Angeles has taken and must
continue to take measures to protect public health, life,
and property.

This ordinance temporarily prohibits evictions of

residential and commercial tenants for failure to pay rent
due to COVID-19, and prohibits evictions of residential
tenants during the emergency for no-fault reasons,
for unauthorized occupants or pets, and for nuisance
related to COVID-19. This ordinance further suspends
withdrawals of occupied residential units from the rental
market under the Ellis Act, Government Code Section
7060, et seq.

SEC. 49.99.1. DEFINITIONS.

The following words and phrases, whenever used in

this article, shall be construed as defined in this section:

A. Commercial Real Property. “Commercial

real property” is any parcel of real property that
is developed and used either in part or in whole
for commercial purposes. This does not include
commercial real property leased by a multi-national
company, a publicly traded company, or a company
that employs more than 500 employees.

B. Endeavor to Evict. “Endeavor to evict” is

conduct where the Owner lacks a good faith basis to
 66a

Appendix F

believe that the tenant does not enjoy the benefits of

this article and the Owner serves or provides in any
way to the tenant: a notice to pay or quit, a notice to
perform covenant or quit, a notice of termination, or
any other eviction notice.

C. Local Emergency Period. “Local emergency

period” is the period of time from March 4, 2020, to
the end of the local emergency as declared by the
Mayor.

D. No-fault Reason. “No-fault reason” is any

no-fault reason under California Civil Code Section
1946.2(b) or any no-fault reason under the Rent
Stabilization Ordinance.

E. Owner. “Owner” is any person, acting as

principal or through an agent, offering residential
or Commercial Real Property for rent, and includes
a successor in interest to the owner.

F. Residential Real Property. “Residential real

property” is any dwelling or unit that is intended or
used for human habitation.

SEC. 49.99.2. PROHIBITION ON RESIDENTIAL

EVICTIONS.

A. During the Local Emergency Period and for 12

months after its expiration, no Owner shall endeavor
to evict or evict a residential tenant for non-payment of
rent during the Local Emergency Period if the tenant is
 67a

Appendix F

unable to pay rent due to circumstances related to the

COVID-19 pandemic. These circumstances include loss
of income due to a COVID-19 related workplace closure,
child care expenditures due to school closures, health-care
expenses related to being ill with COVID-19 or caring
for a member of the tenant’s household or family who is
ill with COVID-19, or reasonable expenditures that stem
from government-ordered emergency measures. Tenants
shall have up to 12 months following the expiration of
the Local Emergency Period to repay any rent deferred
during the Local Emergency Period. Nothing in this
article eliminates any obligation to pay lawfully charged
rent. However, the tenant and Owner may, prior to the
expiration of the Local Emergency Period or within 90
days of the first missed rent payment, whichever comes
first, mutually agree to a plan for repayment of unpaid
rent selected from options promulgated by the Los
Angeles Housing Department (“LAHD”) for that purpose.
(Amended by Ord. No. 187,122, Eff. 8/8/21.)

B. No Owner shall endeavor to evict or evict a

residential tenant for a no-fault reason during the Local
Emergency Period.

C. No Owner shall endeavor to evict or evict a

residential tenant based on the presence of unauthorized
occupants or pets, or for nuisance related to COVID-19
during the Local Emergency Period.

D. No Owner shall charge interest or a late fee on rent

not paid under the provisions of this article.
 68a

Appendix F

E. An Owner shall: (i) provide written notice to

each residential tenant of the protections afforded by
this article (“Protections Notice”) within 15 days of
the effective date of this ordinance; and (ii) provide the
Protections Notice during the Local Emergency Period
and for 12 months after its termination each time the
Owner serves a notice to pay or quit, a notice to terminate
a residential tenancy, a notice to perform covenant or
quit, or any eviction notice, including any notice required
under California Code of Civil Procedure Section 1161
and California Civil Code Section 1946.1. LAHD shall
make available the form of the Protections Notice, which
must be used, without modification of content or format,
by the Owner to comply with this subparagraph. LAHD
will produce the form of the Protections Notice in the
most commonly used languages in the City, and an Owner
must provide the Protections Notice in English and the
language predominantly used by each tenant. (Amended
by Ord. No. 187,122, Eff. 8/8/21.)

F. No Owner shall influence or attempt to influence,

through fraud, intimidation or coercion, a residential
tenant to transfer or pay to the Owner any sum received
by the tenant as part of any governmental relief program.

G. Except as otherwise specified in this article,

nothing in this section shall prohibit an Owner from
seeking to evict a residential tenant for a lawful purpose
and through lawful means.
 69a

Appendix F

SEC. 49.99.3. PROHIBITION ON COMMERCIAL

EVICTIONS.

During the Local Emergency Period and for three

months thereafter, no Owner shall endeavor to evict or
evict a tenant of Commercial Real Property for non-
payment of rent during the Local Emergency Period if
the tenant is unable to pay rent due to circumstances
related to the COVID-19 pandemic. These circumstances
include loss of business income due to a COVID-19
related workplace closure, child care expenditures
due to school closures, health care expenses related to
being ill with COVID-19 or caring for a member of the
tenant’s household or family who is ill with COVID-19,
or reasonable expenditures that stem from government-
ordered emergency measures. Tenants shall have up
to three months following the expiration of the Local
Emergency Period to repay any rent deferred during
the Local Emergency Period. Nothing in this article
eliminates any obligation to pay lawfully charged rent.
No Owner shall charge interest or a late fee on rent not
paid under the provisions of this article.

SEC. 49.99.4. PROHIBITION ON REMOVAL OF

OCCUPIED RESIDENTIAL UNITS.

No Owner may remove occupied Residential Real

Property from the rental market under the Ellis Act,
Government Code Section 7060, et seq., during the
pendency of the Local Emergency Period. Tenancies may
not be terminated under the Ellis Act until 60 days after
the expiration of the Local Emergency Period.
 70a

Appendix F

SEC. 49.99.5. RETROACTIVITY.

This article applies to nonpayment eviction notices,

no-fault eviction notices, and unlawful detainer actions
based on such notices, served or filed on or after the date
on which a local emergency was proclaimed. Nothing
in this article eliminates any obligation to pay lawfully
charged rent.

SEC. 49.99.6. AFFIRMATIVE DEFENSE.

Tenants may use the protections afforded in this

article as an affirmative defense in an unlawful detainer
action.

SEC. 49.99.7. PRIVATE RIGHT OF ACTION FOR

RESIDENTIAL TENANTS.

If an Owner violates Section 49.99.2, except for

49.99.2(E)(i), an aggrieved residential tenant may
institute a civil proceeding for injunctive relief, direct
money damages, and any other relief the Court deems
appropriate, including, at the discretion of the Court,
an award of a civil penalty up to $10,000 per violation
depending on the severity of the violation. If the aggrieved
residential tenant is older than 65 or disabled, the Court
may award an additional civil penalty up to $5,000 per
violation depending on the severity of the violation. The
Court may award reasonable attorney’s fees and costs to
a residential tenant who prevails in any such action. The
Court may award reasonable attorney’s fees and costs to
an Owner who prevails in any such action and obtains a
 71a

Appendix F

Court determination that the tenant’s action was frivolous.

A civil proceeding by a residential tenant under this
section shall commence only after the tenant provides
written notice to the Owner of the alleged violation, and
the Owner is provided 15 days from the receipt of the
notice to cure the alleged violation. The remedies in this
paragraph apply on the effective date of this section, and
are not exclusive nor preclude any person from seeking
any other remedies, penalties or procedures provided by
law.

SEC. 49.99.8. PENALTIES.

Upon the effective date of this section, an Owner who

violates this article shall be subject to the issuance of an
administrative citation as set forth in Article 1.2 of Chapter
I of this Code. Issuance of an administrative citation shall
not be deemed a waiver of any other enforcement remedies
provided in this Code.

SEC. 49.99.9. SEVERABILITY.

If any provision of this article is found to be

unconstitutional or otherwise invalid by any court of
competent jurisdiction, that invalidity shall not affect
the remaining provisions of this article which can be
implemented without the invalid provisions, and to this
end, the provisions of this article are declared to be
severable. The City Council hereby declares that it would
have adopted this article and each provision thereof
irrespective of whether any one or more provisions are
found invalid, unconstitutional or otherwise unenforceable.
 72a

APPENDIX G —Appendix
COURT G ORDER OF THE
SUPERIOR COURT OF CALIFORNIA, COUNTY
OF LOS ANGELES, FILED APRIL 15, 2022

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES
Civil Division
Central District, Spring Street Courthouse,
Department 10

21CHCV00595

GHP MANAGEMENT CORPORATION, A

CALIFORNIA CORPORATION, et al.,

vs

COUNTY OF LOS ANGELES, et al.

Judge: Honorable
William F. Highberger CSR: None

Judicial Assistant: A. Lim ERM: None

Courtroom Assistant: None Deputy Sheriff: None

April 15, 2022

4:43 PM

NATURE OF PROCEEDINGS: Ruling on Submitted

Matter

The Court, having taken the matter under submission

on 02/24/2022 for Hearing on Demurrer - without Motion
 73a

Appendix G

to Strike by County of Los Angeles to First Amended

Complaint, now rules as follows: April 15, 2022 Ruling on
Submitted Matter (submitted Feb. 24, 2022)

Demurrers by County of Los Angeles and State of

California to All Causes of Action: Overruled. Defendants
to file Answer or other appropriate responsive pleading
by May 16, 2022.

I. INTRODUCTORY COMMENTS:

Each defendant filed its own, separate demurrer, but

the arguments are the same so they will be addressed
jointly. County of Los Angeles is named in all four causes
of action and challenges each of them. The State is named
in the first, second, and fourth causes of action only and
thus only challenges those claims. While the County and
State eviction moratoria have had different effective
dates—past, present, and future—and different fine-
print provisions, the parties on both sides do not tether
their respective arguments to any such subtleties. The
landlord Plaintiffs say that individually and collectively
they have worked an impermissible Taking whereas the
government Defendants assert that as a matter of law
these regulatory regimes cannot be seen to constitute a
physical or regulatory taking.

As a preliminary note, as a state trial court, this

Court is bound by published California state Court of
Appeal precedents, state Supreme Court precedents, and
United States Supreme Court precedents. Decisions by
the United States District Courts and Courts of Appeals
 74a

Appendix G

are only of persuasive value to the extent that they are

seen as persuasive.

Certain cases cited by Defendants are not relevant to

the Takings Analysis before the Court on these demurrers.
For example, the failed landlord challenge to COVID-19
rent moratoria analyzed in Apartment Association of
Los Angeles County, Inc. v. City of Los Angeles (9th
Cir. 2021) 10 F.4th 905 , cert. petition pending, was a
challenge made under the Contracts Clause provision of
the United States Constitution at art. I, § 10, cl. 1. The
failed landlord challenges under the Takings Clause to
zoning and planning limits on conversion of real property
use that gave rise to the decisions in San Remo Hotel v.
City & County of San Francisco (2002) 27 Cal.4th 643 and
Ballinger v. City of Oakland (Feb. 1, 2022) 24 F.4th 1287,
involve a factually different and thus legally dissimilar
issue since these Plaintiffs have made no request for
approval to change the permitted use of their multi-family
rental properties. Rather, these Plaintiffs allege that
they have been effectively and permanently denied rental
income for many of the tenants due to the operation of the
challenged moratoria.

This Court is quite aware of the severe impact of the

COVID-19 pandemic on all residents of California, indeed
on all humans on the planet Earth, and the importance
of public health measures to reduce the extent of death,
disability, and economic and non-economic loss caused
by the spread of this virus. A basic tenet of Takings
Analysis, however, is that worthy public measures which
require a taking of a person’s property may well be
 75a

Appendix G

authorized acts of the government pursuant to police

powers, but the costs imposed on the property owner by
such a necessary taking are subject to the constitutional
requirement (under both the United States and California
Constitutions) that reasonable compensation be provided.
These demurrers test whether the Takings Claims pled in
the First Amended Complaint are viable, but they do not
presently test what order of magnitude of compensation
might be due to Plaintiffs should they eventually prevail
on the merits at the time of trial.

One final preliminary note is that the First Amended

Complaint is very specific in alleging how these several
Plaintiffs suffered economic loss due to their alleged
inability to collect rent in a timely fashion from tenants
who remained in possessions of leaseholds while enjoying
the utilities and other services provided by the landlords
to the tenants not paying rent. Whether the Plaintiffs
can prove this factually at time of trial is a question for
another day.

II. DISCUSSION

A. Meet and Confer Requirements

California Code of Civil Procedure § 430.41(a) provides

that “Before filing a demurrer pursuant to this chapter,
the demurring party shall meet and confer in person or
by telephone with the party who filed the pleading that
is subject to demurrer[.]” A demurring party is required
to file and serve with the demurrer a declaration stating
that no agreement was reached after the parties met and
 76a

Appendix G

conferred, or that the filing party failed to respond to the

meet and confer request or failed to meet and confer in
good faith. (Code Civ. Proc., § 430.41(a)(3).)

The County met and conferred with Plaintiffs by letter

prior to amendment of the initial complaint. Plaintiffs’
FAC did not address any of the supposed defects claimed
by the County. (See Levin Decl., ¶¶ 1-4, Ex. 1.) The State
submitted proof of a meet-and-confer on Judicial Council
Form CIV-140.

B. As Applied or Facial Challenge

The County argues that Plaintiffs’ allegations only

amount to a facial challenge of the law, not an as-applied
challenge, because they only claim they are harmed
by application of the law. An as-applied challenge must
plead “specific allegedly impermissible applications
of the [challenged] ordinance.” (Tobe v. City of Santa
Ana (1995) 9 Cal.4th 1069, 1084.) As-applied challenges
“contemplate[] analysis of the facts of a particular case or
cases to determine the circumstances in which the statute
or ordinance has been applied and to consider whether in
those particular circumstances the application deprived
the individual to whom it was applied of a protected right.”
(Id.)

Plaintiffs have alleged injury proximately caused by

rent losses exacerbated by their inability to commence
eviction proceedings. (See FAC, ¶ 46.) But they have not
pled the specifics, such as losses attributable to specific
tenants invoking the protections of the moratoria. The
 77a

Appendix G

Court has not been cited any authority suggesting that

fraud-level pleading is required to perfect an as-applied
challenge. Without clear authority stating the contrary,
the absence of specific details should not limit Plaintiffs
to a facial attack on the moratoria. They have alleged
circumstances where the application of the moratoria has
deprived them of their property rights, and the Court
will treat their pleading as both a facial and as-applied
challenge.

C. Physical Taking

“The paradigmatic taking requiring just compensation

is a direct government appropriation or physical invasion
of private property.” (Lingle v. Chevron U.S.A. Inc.
(2005) 544 U.S. 528, 537.) “[W]here government requires
an owner to suffer a permanent physical invasion of
her property—however minor—it must provide just
compensation.” (Id. at 538; see also Justice Thurgood
Marshall’s opinion in Loretto v. Teleprompter Manhattan
CATV Corp. (1982) 458 U.S. 419, 426, 434-35 (“a permanent
physical occupation authorized by government is a taking
without regard to the public interests that it may serve”).)
Plaintiffs allege the moratoria have stripped their right
to exclude defaulting and nonpaying tenants, tantamount
to a government-authorized physical invasion of their
property. (FAC, ¶ 55.) Courts have held that regulation
of the landlord–tenant relationship, including rent control
and means of collection of rent and eviction, do not amount
to takings. (See Yee v. City of Escondido (1992) 503 U.S.
519, 524-25, 528 (mobile home park rent control).) But a
regulation that compels a landowner to suffer continuing
 78a

Appendix G

occupancy of its property or to “refrain in perpetuity

from terminating a tenancy” might not pass constitutional
muster. (Id. at 528.) To avoid implication of the Takings
Clause, a regulation must be of use of property—it cannot
“authorize an unwanted physical occupation of [Plaintiffs’]
property.” (Id. at 532.) For purposes of Takings analysis,
it does not matter whether the intruder is the government
itself or a third party acting under the protection of
government authority. (Cedar Point Nursery v. Hassid
(2021) 141 S.Ct. 2063, 2071.) Likewise, it does not matter
whether the occupation is temporary or permanent if some
such occupation has occurred. (Id. at 2074 (“a physical
appropriation is a taking whether it is permanent or
temporary”).) Accord, Heights Apartments, LLC v. Walz,
supra, slip op. at 17.

The moratoria here are analogous to the unwanted

“ p er ma nent physic a l occupat ion aut hor i z ed by
government” in Loretto, supra, 458 U.S. at 426. In that
case, the petitioner purchased an apartment building
that she later discovered had cables installed to provide
cable television service to her tenants and the tenants of
neighboring buildings. (Id. at 421-22.) Those cables had
been installed at the invitation of the prior owner. (Id.)
Loretto’s efforts to remove the cables failed in the New
York state courts, which held that a municipal ordinance
mandating installation with nominal compensation did
not run afoul of the Takings Clause. (Id. at 423-25.) The
U.S. Supreme Court reversed, finding the government-
authorized occupation was a taking that entitled Ms.
Loretto to just, rather than nominal, compensation. (See
id. at 425-26.)
 79a

Appendix G

The Supreme Court clarified the limits of its Loretto

holding in Federal Communications Comm’n v. Florida
Power Corp. (1987) 480 U.S. 245. In that case a cable
company leased telephone pole space from a utility to run
telecommunication lines at $7.15 per pole. (Id. at 248-52.)
A federal law regulating utilities who leased telephone
pole space reduced the rent to $1.79 per pole based on the
pole owner’s actual costs. (Id. at 252) The Court found
this was not sufficient to effect a taking, observing that
the ruling in Loretto “specifically required landlords to
permit permanent occupation of their property[.]” (Id.
at 251-53.) By contrast, the telephone pole regulation
did not give cable companies “any right to occupy space
on utility poles” nor did it “prohibit[] utility companies
from refusing to enter into attachment agreements with
cable operators.” (Id. at 251.) The element of “required
acquiescence is at the heart of the concept of occupation[;]”
its absence in Florida Power Corp. meant that the price-
control statute merely regulated economic relations of
landlords and tenants, rather than effected a taking,
and there was an “unambiguous distinction between a
commercial lessee”—the cable operator in Florida Power
Corp.—“and an interloper with a government license”—
the cable operator in Loretto. (Id. at 252-53.)

The situation presented here does not square perfectly

with Loretto or Florida Power Corp., but it is clearly a
closer fit with the former than the latter. Plaintiffs invited
their tenants to live on properties they own in exchange
for payment of a monthly rent at a fixed amount. The
government has allegedly intervened by stripping from
Plaintiffs the legal ability to evict tenants who have not
 80a

Appendix G

been paying rent due to some effect of the coronavirus

pandemic. Because Plaintiffs have lost the right to evict
tenants in arrears, the rent those tenants agreed to pay
as part of their invitation onto the premises has allegedly
been effectively reduced to zero.

Defendants would like to portray this as merely an

economic regulation of the landlord–tenant relationship
that extends the time to pay rent or initiate an unlawful
detainer proceeding. But the moratoria, at least according
to the allegations in the First Amended Complaint,
do more than control of the price of rent, or when it is
due, or when and how a landlord can eject a delinquent
tenant from the premises. The extended bar on eviction
effectively eliminates rent and is thus tantamount to
occupation—the tenants in arrears effectively enjoy
a government-mandated right to occupy a landlord-
maintained space owned by Plaintiffs for nearly two
years. (See Florida Power Corp., supra, 480 U.S. at
251.) The moratoria “require the landlord to suffer the
physical occupation of a portion of his building by a third
party[.]” (Loretto, supra, 458 U.S. at 440.) There is no
right to refuse continued occupancy to these tenants; the
“element of required acquiescence [that] is at the heart
of the concept of occupation” is clearly present. (Florida
Power Corp., supra, 480 U.S. at 252.) Because tenants in
arrears are effectively relieved of their obligations to pay
rent, they are more like “an interloper with a government
license” than a lessee whose tenancy is regulated by the
state. (See id. at 252-53.)
 81a

Appendix G

Defendants argue that the limited nature of the

eviction moratoria defeats Plaintiffs’ Takings Clause
claims. Defendants rely substantially on Yee. In Yee
there was a California state law, enacted in 1978, that
regulated the relationship between a mobile home park
landlord and a mobile homeowner who was a park tenant.
(See Yee, supra, 503 U.S. at 524.) The state law—no
doubt recognizing the high cost of moving a mobile home
and the fact that such homes were usually sold in place
rather than relocated—served to (1) limit the bases on
which a landlord could terminate a tenancy at a “pad”
in a mobile home park (but allowed nonpayment of rent
as a basis for eviction, as well as violation of park rules
or a desired change in the use of the land); (2) generally
prohibited landlord removal of a mobile home sold by the
owner of the personal property while a rental agreement
was in effect; and (3) prohibited charging a transfer fee
for sale and vetoing a purchaser who had the ability to
pay rent. (Id. at 523-24.) The statewide law had no rent
control provision; those regulations were left to local
governments. Escondido adopted a rent control provision
in 1988, ten years after the state law was passed. (Id.
at 524.) The Escondido rent control ordinance set rents
at 1986 levels and required increases to be approved by
the city council. (Id. at 524-25.) Mobile home landlords
challenged the local Escondido rent control ordinance.
(Id. at 522-23.) The Supreme Court ultimately concluded
that, as clarified in Florida Power Corp., “no taking occurs
under Loretto when a tenant invited to lease at one rent
remains at a lower regulated rent” because such rent
control “does not compel a landowner to suffer the physical
occupation of his property[.]” (Id. at 539.)
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Appendix G

Defendants rely heavily on this language and liken

their eviction moratoria to rent control affecting tenants
already invited to live on the premises by the landlord
Plaintiffs. But an eviction ban is not rent control—it is
allegedly the permanent loss of rent otherwise due per
contract. The Yee landlords could still evict a tenant for
nonpayment of rent or violation of community rules—
something Plaintiffs here cannot do or are afraid to
do because tenants might invoke the moratorium as
protection against eviction. (See id. at 523-24.) The scheme
in Yee was vastly different from the moratoria at issue
here—it truly was a mere regulation of the relationship
between mobile home park landlords and their tenants.
The limitations on evicting a mobile home park tenant
reflected the nature of the mobile home housing situation
and are distinguishable from the rent-free occupation of
ordinary residential rental property at issue here. (See id.
at 526-32.) The fact that several federal courts have relied
on Yee does not mean they have not misapprehended its
holding. Yee was about rent control, not the permanent
loss of rent otherwise due per contract. Per state law, the
Yee landlords were never barred from evicting tenants for
nonpayment. (Id. at 523-24.) There is a clear distinction
between the mobile home regulatory regime and the
government-licensed, rent-free apartment occupations
created by these moratoria. The right to bar a trespasser
(i.e., a tenant refusing to pay rent) from possession of one’s
property is the most basic of real property rights. Heights
Apartment, LLC v. Walz, supra, slip op. at 10.

Further suggesting that the moratoria create a

government-sanctioned occupation proscribed by the
 83a

Appendix G

Takings Clause are recent comments by the Supreme

Court. The Court, in a per curiam opinion that drew
only three dissenting associate justices, found an eviction
moratorium imposed by the federal government was invalid
because it exceeded the statutory authority of the issuing
agency (Centers for Disease Control and Prevention).
But the Court also noted that such a moratorium would
put landlords “at risk of irreparable harm by depriving
them of rent payments with no guarantee of eventual
recovery” and that “preventing [landlords] from evicting
tenants who breach their leases intrudes on one of the most
fundamental elements of property ownership—the right
to exclude.” (Alabama Ass’n of Realtors v. Department
of Health & Human Services (2021) 141 S.Ct. 2485,
2489.) This strongly suggests that, were the question
of a moratorium’s constitutionality under the Fifth
Amendment to be placed squarely before the Supreme
Court, a six-member majority would find it to be something
other than permissible landlord–tenant regulations, like
those in Yee or Florida Power Corp., but instead more
like the government-authorized intrusion in Loretto.
Additionally, the Supreme Court recognized that even a
temporary moratorium can inflict “irreparable harm by
depriving [landlords] of rent payments[.]” (Alabama Ass’n
of Realtors, supra, 141 S.Ct. at 2489.)

Defendants have not demonstrated that any facts pled

or judicially noticeable establish that any rent payments
not collected due to the moratoria are guaranteed to be
recoverable from the tenant or from a government subsidy
program. (See id.) Perhaps facts developed in discovery
will show that tenant and landlord assistance programs
 84a

Appendix G

effectively compensate for any taking effected by the

moratoria. Until then, Plaintiffs must be permitted to
litigate their cases.

D. Regulatory Taking

The courts have recognized that “government

regulation of private property may, in some instances,
be so onerous that its effect is tantamount to a direct
appropriation or ouster” and that such regulatory takings
are compensable under the Fifth Amendment. (Lingle,
supra, 544 U.S. at 537.) To determine whether a regulation
effects a taking, a court considers three factors: (1) the
regulation’s economic impact on the claimant; (2) the
extent to which the regulation interferes with distinct
investment-backed expectations; and (3) the character
of the government action. (Penn Central Transportation
Co. v. City of New York (1978) 438 U.S. 104, 124; Colony
Cove Properties, LLC v. City of Carson (9th Cir. 2018)
888 F.3d 445, 450.)

There is no “set formula” for determining “how far is

too far” when evaluating a regulation’s economic impact
on a claimant. (Lucas v. South Carolina Coastal Council
(1992) 505 U.S. 1003, 1015.) When a property owner has
suffered a physical invasion, “no matter how minute
the intrusion, and no matter how weighty the public
purpose behind it, [the Supreme Court has] required
compensation.” (Id.) Courts will also categorically require
compensation when a regulation “denies all economically
beneficial or productive use of land.” (Id.) When either
of these situations arises, compensation is mandatory.
 85a

Appendix G

Otherwise, the court undertakes a “case-specific inquiry

into the public interest advanced in support of the
restraint.” (Id.)

Here, Plaintiffs have sufficiently alleged a physical

invasion of their property. No regulatory taking analysis is
necessary because Plaintiffs have established categorical
entitlement to compensation as alleged in the first, third,
and fourth causes of action, making the second cause of
action functionally redundant.

Further and specific to the second cause of action, the

regulatory taking analysis “necessarily entails complex
factual assessments of the purposes and economic effects
of government actions” and thus is essentially a factual
determination not appropriate for resolution on a pleading
challenge. (Yee, supra, 503 U.S. at 523; Barbaccia v.
County of Santa Clara (N.D. Cal. 1978) 451 F.Supp. 260,
266.) For this reason, the demurrers to the second cause
of action are overruled without prejudice to renewing the
argument once a factual record is developed.

E. Other Arguments

Defendants also invoke case law where courts made

sweeping statements about deference to local ordinances
and other government measures intended to ensure the
health and safety of the populace. The favored cite is to
Jacobson v. Massachusetts (1905) 197 U.S. 11, wherein
the Supreme Court affirmed the constitutionality of a
$5 fine imposed by Massachusetts on individuals who
failed to comply with a smallpox vaccination requirement.
 86a

Appendix G

Constitutional property protections were not implicated

by the case. The Court acknowledged health and safety
regulations were committed to local authority, but courts
should “guard with firmness every right appertaining to
life, liberty, or property as secured to the individual by
the supreme law of the land[.]” (Id. at 38.) The issue before
the Court on these demurrers is not the lawfulness of
mandatory COVID-19 vaccination.

Defendants have also suggested that the emergency

nature of the coronavirus pandemic justifies any taking
that may have been effected by the eviction moratoria.
But this “requires an actual emergency with immediate
and impending danger to support a necessity defense.”
(TrinCo Investment Co. v. United States (Fed. Cir. 2013)
722 F.3d 1375, 1379 (wartime order to destroy petroleum
in storage in the Philippines in advance of Japanese Army
advance not compensable as wartime emergency, but harm
to timber owners from allegedly mis-managed wildfire
suppression effort survives Rule 12(b)(6) challenge); see
also United States v. Caltex (1952) 344 U.S. 149, 151,
156.) Such a scenario usually implicates momentary
police action “under pressure of public necessity and
to avert impending peril.” (Customer Co. v. City of
Sacramento (1995) 10 Cal.4th 368, 384 (police use of tear
gas to apprehend suspect causing damage to merchant’s
inventory not compensable).)

The prolonged nature of the moratorium, and its

stated purpose to buttress lockdown orders, suggests
it may not be amenable to a necessity defense because
it served to mitigate a long-term public health hazard
rather than “avert impending peril.” (See id., see also
 87a

Appendix G

Heights Apartment LLC v. Walz, supra, slip op. at 7

discussing factual question of extent to which “Jacobson
deference” ceased to apply “after the immediate
public health crisis dissipated, and traditional levels of
[constitutional] scrutiny are applicable.”) In any event,
such a determination is not feasible on demurrer. This
can be pled as an affirmative defense. Additionally, the
invocation by Defendants of the “noncompensable loss
doctrine,” as such, is not availing because the types of
emergencies where a public entity is exempt from liability
are narrowly circumscribed to destruction of buildings
to prevent the spread of conflagration or destruction of
diseased animals, rotten fruit, or infected plants or trees
where life or health is jeopardized. (Holtz v. Superior
Court (1970) 3 Cal.3d 296, 305 & n.10.) Defendants cite
to no carve-out for a long-term effort meant to mitigate
a pandemic of an upper respiratory disease.

F. Requests for Judicial Notice

The County seeks judicial notice of three actions

taken by its Board of Supervisors. The State seeks
judicial notice of four executive orders and information
regarding coronavirus statistics available on government-
run websites. There are no objections, and all items
are proper subjects of judicial notice. (See Evid. Code,
§ 452(a)-(c), (h).)

FOOTNOTE:

The Eight Circuit recently reached a contrary conclusion

on the Contracts Clause issue in Heights Apartments,
 88a

Appendix G

LLC v. Walz (April 5, 2022) F.4th , No. 21-1278, slip

op. at pg. 11, n. 8.

Further Status Conference is scheduled for 04/29/22 at
01:30 PM in Department 10 at Spring Street Courthouse.
Joint Status Report is due on 04/22/22.

A copy of this minute order is uploaded on the Case

Anywhere website.