NOTICE OF RULE 12(b)(1) AND 12(b)(6)MOTION TO DISMISS;2015cv05295/293015/20/0.pdf · 2016-06-22 · 5:15-CV-05295 EJD San Jose, California 95113, Defendant City of Palo Alto (the

BURKE, WILLIAMS &SORENSEN , LLPATTORNE YS AT LAW

O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

OAK #4844-1815-2491 v7 - 1 - MPA ISO MOT. TO DISMISS5:15-CV-05295 EJD

Kevin D. Siegel (SBN 194787)E-mail: [email protected] D. Visick (SBN 258106)E-mail: [email protected] J. Muscolino (SBN 273900)E-mail: [email protected], WILLIAMS & SORENSEN, LLP1901 Harrison Street, Suite 900Oakland, CA 94612-3501Tel: 510.273.8780 Fax: 510.839.9104

Molly S. Stump (SBN 177165)City AttorneyE-mail: [email protected] Howzell (SBN 140822)Principal AttorneyE-mail: [email protected] OF PALO ALTO250 Hamilton AvenuePalo Alto, CA 94301Tel: 650.329.2171 Fax: 650.329.2646

Attorneys for DefendantCITY OF PALO ALTO

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

TOUFIC AND EVA JISSER, AND THETOUFIC AND EVA JISSERREVOCABLE TRUST,

Plaintiffs,

v.

CITY OF PALO ALTO,

Defendant.

Case No. 5:15-CV-05295 EJD

DEFENDANT CITY OF PALO ALTO’SNOTICE OF RULE 12(b)(1) AND12(b)(6)MOTION TO DISMISS;MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OF RULE12(b)(1) AND 12(b)(6) MOTION TODISMISS

Date: May 26, 2016Time: 9:00 a.m.Courtroom: No. 4Judge: Hon. Edward J. Davila

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on May 26, 2016 at 9:00 a.m. before the Honorable

Edward J. Davila in Courtroom No. 4 of the United States District Court, 280 South First Street,

Jisser et al v. City of Palo Alto Doc. 20

Dockets.Justia.com

https://dockets.justia.com/docket/california/candce/5:2015cv05295/293015/

https://docs.justia.com/cases/federal/district-courts/california/candce/5:2015cv05295/293015/20/

https://dockets.justia.com/


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


San Jose, California 95113, Defendant City of Palo Alto (the “City”) will, and hereby does, move

the Court for an order dismissing the Complaint for Violation of Federal Civil Rights Under 42

U.S.C. § 1983 and California State Law (Cal. Gov’t Code § 65863), Declaratory and Injunctive

Relief (“Complaint”) filed by Plaintiffs Toufic and Eva Jisser, and the Toufic and Eva Jisser

Revocable Trust (“Plaintiffs”). This Motion is made under rules 12(b)(1) and 12(b)(6) of the

Federal Rules of Civil Procedure:

As to Counts One and Two (violation of the federal Takings Clause of the Fifth

Amendment to the U.S. Constitution by unconstitutional exaction and private takings theories):

1. Plaintiffs present time-barred facial challenges to the legislative requirement,adopted in 2001, that they pay relocation assistance.

2. This Court should follow Supreme Court precedent which rejected ananalogous claim that California’s Mobilehome Residency Law and local regulation area per se taking that does not depend upon the extent of the alleged take (Yee v. City ofEscondido, 503 U.S. 519 (1992).

3. The failure to seek administrative relief (an exemption) or state court relief(writ and takings claims) bars any as-applied claim (the claim is not ripe).

4. The failure cannot be cured now that the statute of limitations has expired.

5. The subject actions satisfy the public use requirement of the Takings Clause.

As to Count Three (alleged violation of the State’s Mobilehome Residency Law): this

Court should decline to exercise supplemental jurisdiction because the federal claims fail.

This Motion is based on this Notice, the accompanying Memorandum of Points and

Authorities, the Request for Judicial Notice filed and served herewith, the papers on file herein

and such other matters as the Court may consider at or before the hearing on the Motion.

Dated: December 22, 2015 BURKE, WILLIAMS & SORENSEN, LLP

By: /s/ Kevin D. SiegelKevin D. SiegelAttorneys for Defendant City of Palo Alto


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTS

Page

- i - MPA ISO MOT. TO DISMISS5:15-CV-05295 EJD

I. INTRODUCTION .......................................................................................................... 1

II. STATEMENT OF FACTS.............................................................................................. 2

A. Summary of the State’s and the City’s Mobilehome Park Conversion Laws......... 2

1. The State’s Mobilehome Residency Law Limits an Owner’s Rightto Close a Mobile Home Park and Authorizes Local Agencies toRequire Payment of Relocation Assistance............................................... 2

2. The City Adopted a Mobilehome Park Conversion Ordinance in2001......................................................................................................... 3

B. The City Approved Plaintiffs’ Application to Convert the Buena VistaMobilehome Park, Which Plaintiffs Formally Accepted per PAMC§ 9.76.050............................................................................................................ 5

C. The Residents Association Filed Suit in State Court; Plaintiffs Did Not ............... 7

D. Even Though They Did Not Exhaust Administrative or State CourtRemedies, Plaintiffs Filed this Federal Court Action............................................ 7

III. DISCUSSION................................................................................................................. 7

A. Standards for Rule 12(b)(1) and 12(b)(6) Motions ............................................... 7

B. Plaintiffs’ Theories Lack Foundation and Go Too Far in Trying to Extendthe Law................................................................................................................ 8

C. The First and Second Counts Should Be Construed as Facial Claims, forWhich the Statute of Limitations Has Expired...................................................... 9

1. Because They Challenge the Legality of Legislation, Not theManner in Which the City Applied the Ordinance, PlaintiffsActually Allege Facial Claims.................................................................. 9

2. Plaintiffs’ Claims Are Time Barred ........................................................ 12

a. The Claims Accrued When the City Adopted the Ordinance ....... 12

b. The Limitations Period Expired Over a Dozen Years Ago .......... 12

D. This Court Should Follow Yee, Which Rejected an Analogous Per SeClaim................................................................................................................. 13

E. Counts One and Two Fail Even If Construed to Be As-Applied TakingsClaims ............................................................................................................... 15

1. The Remedy for a Taking, Including an Exaction, Is JustCompensation ........................................................................................ 15

2. Plaintiffs Have Not Presented a Ripe As-Applied Takings Claim ........... 16


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTS(continued)

Page

- ii - MPA ISO MOT. TO DISMISS5:15-CV-05295 EJD

a. A Property Owner Cannot State an As-Applied Claim UntilIt Has (a) Obtained a Final Administrative Decision and(b) Pursued Writ Relief and Just Compensation in StateCourt .......................................................................................... 16

b. The Courts Dismiss Unripe Exaction and Private TakingsClaims ........................................................................................ 17

c. Plaintiffs’ Federal Takings Claims Are Not Ripe ........................ 18

d. The As-Applied Claims Cannot Be Ripened ............................... 18

F. The Second Count (the Private Takings Claim) Has Been Soundly Rejected...... 20

G. The Court Should Not Exercise Supplemental Jurisdiction Over the ThirdCount................................................................................................................. 22

IV. CONCLUSION............................................................................................................. 23


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

OAK #4844-1815-2491 v7 - iii - MPA ISO MOT. TO DISMISS5:15-CV-05295 EJD

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Action Apt. Ass’n v. Santa Monica Rent Control Opinion Bd.,509 F.3d 1020 (9th Cir. 2007) .........................................................................................21, 22

Azul-Pacifico, Inc. v. City of Los Angeles,973 F.2d 704 (9th Cir. 1992) .................................................................................................. 9

Brown v. Legal Found. of Washington,538 U.S. 216 (2003)............................................................................................................. 15

California-Nevada Annual Conference of the Methodist Church v. City & Cty. ofSan Francisco,74 F.Supp.3d 1144, 1162 ..................................................................................................... 19

Canatella v. Van De Kamp,486 F.3d 1128 (9th Cir. 2007) .............................................................................................. 12

Carlsbad Tech., Inc. v. HIF Bio., Inc.,556 U.S. 635 (2009)............................................................................................................. 22

Carson Harbor Village, Ltd. v. City of Carson,353 F.3d 824 (9th Cir. 2004) ...........................................................................................15, 17

City of Monterey v. Del Monte Dunes at Monterey, Ltd.,526 U.S. 687 (1999)............................................................................................................. 15

Colony Cove Properties, LLC v. City of Carson,640 F.3d 948 (9th Cir. 2011) .....................................................................................12, 13, 17

Daniel v. County of Santa Barbara,288 F.3d 375 (9th Cir. 2002) .................................................................................9, 16, 17, 19

Dolan v. City of Tigard,512 U.S. 374 (1994)............................................................................................................... 8

Eastern Enterprises v. Apfel,524 U.S. 498 (1998)............................................................................................................. 15

Equity Lifestyle Properties, Inc. v. Cty. of San Luis Obispo,548 F.3d 1184 (9th Cir. 2008) .........................................................................................15, 22

First English Evangelical Lutheran Church of Glendale v. Los Angeles County,482 U.S. 304 (1987)......................................................................................................... 8, 17


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

OAK #4844-1815-2491 v7 - iv - MPA ISO MOT. TO DISMISS5:15-CV-05295 EJD

Gamble v. Eau Claire County,5 F.3d 285 (7th Cir. 1993).................................................................................................... 19

Guggenheim v. City of Goleta,638 F.3d 1111 (9th Cir. 2010) ............................................................................. 10, 12, 21, 22

Harbours Pointe of Nashotah, LLC v. Vill. of Nashotah,278 F.3d 701 (7th Cir. 2002) ................................................................................................ 19

Holliday Amusement Co. of Charleston, Inc. v. South Carolina,493 F.3d 404 (4th Cir. 2007) ................................................................................................ 19

Kelo v. City of New London,545 U.S. 469 (2005)............................................................................................................. 22

Koontz v. St. Johns River Water Mgmt. Dist.,133 S.Ct. 2586 (2013) ...................................................................................................8, 9, 14

Levin v. City & Cty. of San Francisco,71 F.Supp.3d 1072, 1087 (N.D. Cal. 2014).......................................................... 11, 14, 15, 21

Liberty Mut. Ins. Co. v. Brown,380 F.3d 793 (5th Cir. 2004) ................................................................................................ 19

Lingle v. Chevron U.S.A.,544 U.S. 528 (2005)......................................................................................................... 8, 10

Lucas v. S. Carolina Coastal Council,505 U.S. 1003 (1992)........................................................................................................... 17

MacDonald, Sommer & Frates v. Yolo Cty.,477 U.S. 340 (1986)............................................................................................................. 16

Martinez v. City of Los Angeles,141 F.3d 1373 (9th Cir. 1998) ................................................................................................ 9

Hawaii Housing Authority v. Midkiff,467 U.S. 229 (1984)............................................................................................................. 22

Milpitas Mobile Home Estates v. City of Milpitas,2013 WL 4504877 (N.D. Cal. Aug. 21, 2013) ...........................................................12, 13, 21

Monell v. Dep’t of Soc. Servs. of City of New York,436 U.S. 658 (1978)............................................................................................................. 10

Multi Denominational Ministry of Cannabis & Rastafari, Inc. v. Gonzales,474 F.Supp.2d 1133 (N.D. Cal. 2007) .................................................................................. 23

Native Vill. of Kivalino v. ExxonMobil Corp.,663 F.Supp.2d 863 (N.D. Cal. 2009) .................................................................................... 23


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

OAK #4844-1815-2491 v7 - v - MPA ISO MOT. TO DISMISS5:15-CV-05295 EJD

Nicky Rottens Inv. Group, Inc. v. City of Coronado(S.D. Cal., Nov. 27, 2012) 2012 WL 5944235...................................................................... 19

Nollan v. California Coastal Comm’n,483 U.S. 825 (1987)......................................................................................................8, 9, 16

Outdoor Media Group, Inc. v. City of Beaumont,506 F.3d 895 (9th Cir. 2007) .................................................................................................. 7

Pascoag Reservoir & Dam, LLC v. Rhode Island,337 F.3d 87 (1st Cir. 2003) .............................................................................................17, 19

Pennell v. San Jose,485 U.S. 1 (1988)................................................................................................................. 22

Rancho de Calistoga v. City of Calistoga,800 F.3d 1083 (9th Cir. 2015) ..............................................................9, 11, 12, 14, 18, 20, 21

Richardson v. City and County of Honolulu,124 F.3d 1150 (9th Cir. 1997) .............................................................................................. 22

San Remo Hotel v. City and County of San Francisco,145 F.3d 1095 (9th Cir. 1998) .............................................................................................. 17

Sanchez v. City of Fresno,914 F.Supp.2d 1079 (E.D. Cal. 2012)................................................................................... 17

Sanford v. MemberWorks, Inc.,625 F.3d 550 (9th Cir. 2010) ................................................................................................ 23

Sinclair Oil Corp. v. Cty. of Santa Barbara,96 F.3d 401 (9th Cir. 1996)...................................................................................1, 16, 17, 19

Smith v. Lenches,263 F.3d 972 (9th Cir. 2001) ................................................................................................ 23

Telesaurus VPC, LLC v. Power,623 F.3d 998 (9th Cir. 2010) .............................................................................................. 7, 8

Ventura Mobilehome Communities Owners Ass’n v. City of San Buenaventura,371 F.3d 1046 (9th Cir. 2004) .........................................................................................10, 11

Ward v. Caulk,650 F.2d 1144 (9th Cir. 1981) .............................................................................................. 10

Washington Legal Found. v. Legal Found. of Washington,271 F.3d 835 (9th Cir. 2001) ................................................................................................ 15

Williamson County Regional Planning Com'n v. Hamilton Bank of Johnson City,473 U.S. 172 (1985)............................................................................................................. 16


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

OAK #4844-1815-2491 v7 - vi - MPA ISO MOT. TO DISMISS5:15-CV-05295 EJD

Yee v. City of Escondido,503 U.S. 519 (1992)................................................................................ 2, 3, 8, 10, 11, 13, 14

State Cases

Embassy LLC v. City of Santa Monica,185 Cal.App.4th 771 (2010)................................................................................................... 3

Hensler v. City of Glendale,8 Cal.4th 1 (1994) ...........................................................................................................17, 19

Keh v. Walters,55 Cal.App.4th 1522 (1997)................................................................................................... 3

Federal Statutes

28 U.S.C. § 1367(c)(3)............................................................................................................... 22

42 U.S.C. § 1983 ................................................................................................................... 9, 12

State Statutes

Cal. Civ. Code § 798.................................................................................................................... 2

Cal. Civ. Code § 798.55(a)........................................................................................................... 3

Cal. Civ. Code § 798.56............................................................................................................... 3

Cal. Civ. Code § 798.56(g) .................................................................................................... 3, 13

Cal. Civ. Code § 798.56(h) .......................................................................................................... 3

Cal. Code Civ. Proc. § 1094.6.................................................................................................... 20

Cal. Gov’t Code § 7060 ............................................................................................................... 3

Cal. Gov’t Code § 65863.7 ...................................................................................................... 3, 4

Cal. Gov’t Code § 65863.7(e) ...................................................................................................... 3

Cal. Gov’t Code § 65863.8 .......................................................................................................... 3

Cal. Gov't Code § 66427.4........................................................................................................... 4

Cal. Mobilehome Residency Law ................................................................... 2, 3, 4, 7, 13, 14, 23

Rules

Fed. R. Civ. P. 12(b)(1)............................................................................................................ 1, 7

Fed. R. Civ. P. 12(b)(6).......................................................................................................1, 7, 13


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

OAK #4844-1815-2491 v7 - vii - MPA ISO MOT. TO DISMISS5:15-CV-05295 EJD

Municipal Codes [Palo Alto Municipal Code (“PAMC”)]

PAMC § 9.76............................................................................................................................... 3

PAMC § 9.76.010........................................................................................................................ 4

PAMC § 9.76.030(a).................................................................................................................... 4

PAMC § 9.76.030(d)-(m)............................................................................................................. 4

PAMC § 9.76.040........................................................................................................................ 5

PAMC § 9.76.040(a)-(f) .............................................................................................................. 5

PAMC § 9.76.040(g) ................................................................................................................... 5

PAMC § 9.76.050.................................................................................................................... 5, 6

PAMC § 9.76.060........................................................................................................................ 5

PAMC § 9.76.080...................................................................................................................... 18

PAMC § 9.76.080(b) ............................................................................................................... 5, 6

PAMC § 9.76.080(c)................................................................................................................ 5, 6

PAMC § 9.76.140...................................................................................................................... 20


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


MEMORANDUM OF POINTS AND AUTHORITIES

Defendant City of Palo Alto (“City”) submits this memorandum of points and authorities

in support of its motion to dismiss (Fed. R. Civ. P 12(b)(1) and 12(b)(6)) the Complaint filed by

Plaintiffs Toufic and Eva Jisser, and the Toufic and Eva Jisser Revocable Trust (“Plaintiffs”).1

I. INTRODUCTION

The City approved Plaintiffs’ application to convert their mobilehome park to another use,

on the condition that Plaintiffs provide their tenant-mobilehome owners relocation assistance.

The City properly required relocation assistance as a condition of approval, pursuant to state law

and a City ordinance that require mitigation of impacts of park closure upon residents whose

mobilehomes are not truly mobile and who are in need of assistance in securing new housing.

Plaintiffs—who had actually proposed many of the mitigation measures and defended the

hearing officer’s decision when the residents appealed to the City Council—formally accepted the

City Council’s decision, and did not file a state court action for relief prior to the expiration of the

statute of limitations. Instead, Plaintiffs filed this action, which purports to allege two federal

inverse condemnation claims (unconstitutional exaction and “private takings” claim) and one

state law claim (violation of California’s Mobilehome Residency law).2

Plaintiffs attempt to forge new takings law. But they present untimely and meritless

claims, untethered to foundational authority. The fatal flaws are multiple and beyond cure:

(1) Plaintiffs actually present a time-barred facial challenge (which does not depend on the extent

of the allegedly excessive regulation), (2) the Supreme Court has rejected an analogous takings

challenge to mobilehome park regulations that transfer money from the park owner to

mobilehome owners, (3) even if treated as an as-applied claim, the suit is barred by Plaintiffs’

failure to seek administrative and state court relief (writ and takings claims), (4) these failures

cannot be cured, and (5) the “private takings” claim is based on a rejected theory.

Numerous cases—from the Supreme Court, Ninth Circuit and other courts—have roundly

1 Toufic Jisser is also known as Tim Jisser. Complaint, ¶ 1.2 This City uses the terms inverse condemnation and takings interchangeably. See

Sinclair Oil Corp. v. Cty. of Santa Barbara, 96 F.3d 401, 408 n. 4 (9th Cir. 1996).


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


rejected similar efforts by property owners to use the Takings Clause as a sword to attack cities’

lawful exercises of their police power to protect vulnerable residents. Indeed, many of the

controlling and persuasive precedents were suits filed by mobilehome park owners who similarly

sought financial windfalls by challenging legislative and administrative actions. Courts have

consistently rejected these attempts to undermine the laws upon which both mobilehome park

owners and their tenants have reasonable investment-backed expectations.

The federal courts have seen through such offensive uses of the Fifth Amendment to

attack sound public policy. This Court should too. If Plaintiffs had truly believed that the City

exceeded its authority, they would have (1) rejected (rather than have affirmatively accepted) the

City’s decision and (2) filed a timely state court action which pleads writ of mandate and inverse

condemnation claims. Plaintiffs instead filed this time-barred and baseless suit.

II. STATEMENT OF FACTS

A. Summary of the State’s and the City’s Mobilehome Park Conversion Laws.

The term “mobile home” is somewhat misleading. Mobile homes arelargely immobile as a practical matter, because the cost of moving one isoften a significant fraction of the value of the mobile home itself. Theyare generally placed permanently in parks; once in place, only about 1 inevery 100 mobile homes is ever moved.

Yee v. City of Escondido, 503 U.S. 519, 523 (1992). Because of the unique vulnerability of

mobilehome owners, the State of California (the “State”) and the City each limit the

circumstances under which a mobilehome park owner may terminate a tenancy, including the

conditions by which the owner may obtain local agency permission to close the park or change

the use (e.g., payment of relocation assistance). Id. at 524; Cal. Civ. Code § 798 et seq.;

Defendant City of Palo Alto’s Request for Judicial Notice (“RJN”), Exh. A.

Below, the City summarizes relevant provisions of the State and City laws.

1. The State’s Mobilehome Residency Law Limits an Owner’s Right to Close aMobile Home Park and Authorizes Local Agencies to Require Payment ofRelocation Assistance.

The Mobilehome Residency Law (Cal. Civ. Code § 798 et seq.) recognizes that

mobilehome owners are particularly vulnerable if evicted:

[B]ecause of the high cost of moving mobilehomes, the potential for


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


damage resulting therefrom, the requirements relating to the installation ofmobilehomes, and the cost of landscaping or lot preparation, it isnecessary that the owners of mobilehomes occupied within mobilehomeparks be provided with the unique protection from actual or constructiveeviction afforded by the provisions of this chapter.

Cal. Civ. Code § 798.55(a); see also Yee, 503 U.S. at 524, and Keh v. Walters, 55 Cal.App.4th

1522, 1525 (1997) (discussing Mobilehome Residency Law).

The State thus limits the circumstances in which a mobilehome park owner may terminate

tenancies. See Cal. Civ. Code § 798.56 (right to terminate tenancy limited to conversion of the

park for which relocation assistance may be required, violation of a mobilehome-related law,

failure to pay rent, and other specified circumstances). If a park owner seeks to convert the

property to another use, a local agency may require a permit, and the park owner must prepare a

Relocation Impact Report so that the local agency may require reasonable relocation assistance.

Cal. Civ. Code § 798.56, subdivs. (g), (h); Cal. Gov’t Code § 65863.7. A local agency

may require, as a condition of the change, the person or entity to take stepsto mitigate any adverse impact of the conversion, closure, or cessation ofuse on the ability of displaced mobilehome park residents to find adequatehousing in a mobilehome park. The steps required to be taken to mitigateshall not exceed the reasonable costs of relocation.

Cal. Gov’t Code § 65863.7(e); see also Keh, 55 Cal.App.4th at 1527; Complaint, ¶¶ 28-33.

State law contemplates that local legislation will require park owners to pay reasonable

relocation expenses to mitigate the impacts of conversions on their residents. See, e.g., Cal. Gov’t

Code § 65863.8. Many local agencies have adopted mobilehome park conversion ordinances.

See, e.g., Keh, 55 Cal.App.4th at 1527 (1997) (City of Capitola ordinance); RJN, ¶ H.3

2. The City Adopted a Mobilehome Park Conversion Ordinance in 2001.

The Charter City of Palo Alto adopted a Mobilehome Park Conversion Ordinance in 2001.

It is codified at Chapter 9.76 of the Palo Alto Municipal Code (“PAMC”). RJN, Exhs. A, B;

3 The State has clearly distinguished between mobile home park owners and otherlandlords. Whereas California law generally restricts a mobilehome park owner’s right toterminate tenancies (and requires relocation assistance as a park closure condition), under theEllis Act (Cal. Gov’t Code § 7060 et seq.), local agencies may not prevent residential propertyowners from exiting the rental business. See Embassy LLC v. City of Santa Monica, 185Cal.App.4th 771, 774 (2010). Plaintiffs’ dispute is with the wisdom of the State’s legislativepolicy for mobile home parks, which the City implements.


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Complaint, ¶¶ 34-35. The City Council’s legislative purpose and findings include:

(1) mobilehome owners are uniquely and particularly vulnerable to losing their homes and

investments if a mobilehome park owner seeks to close the mobilehome park, and (2) state law

authorizes the City to require mobilehome park owners to provide their tenants reasonable

relocation assistance as a condition of closing a mobilehome park. RJN, Exhs. A, B.4

The Ordinance sets forth a process by which a mobilehome park owner may apply for

City approval to convert (i.e., close) a park. See generally RJN, Exhs. A, B; see also Complaint,

¶ 36. The park owner shall file with the City a conversion application and Relocation Impact

Report, among other things. RJN, Exh. B [PAMC § 9.76.030(a)]; see also Complaint, ¶¶ 37-38.

The Relocation Impact Report provides information about, inter alia, the proposed new use for

the mobilehome park; the proposed conversion timetable; valuation information regarding both

the mobilehomes and the mobilehome park; comparable mobilehome parks within a 35-mile

radius; costs estimates for relocating mobilehomes; and proposed measures for mitigating the

impact of moves. RJN, Exh. B [PAMC § 9.76.030(d) – (m)]; see also Complaint, ¶ 37.

4 Section 9.76.010 states:

The mobilehome owners who rent spaces for their homes in mobilehomeparks make a considerable investment in purchasing, maintaining andimproving their homes and in maintaining the rented space for their homes.If a park closes or is converted to a new use, the mobilehome owners maylose their homes and the investment in them due to the high cost and risk ofinjury involved in moving a mobilehome, the fact that improvements to ahome may not be movable and the lack of vacant mobilehome spaces inparks within a reasonable distance from the closing park that will acceptrelocating homes. In recognition of the unique situation and vulnerabilityof mobilehome owners, the State Legislature adopted the MobilehomeResidency Law … which protects them from eviction except for specifiedand limited causes, and Government Code Sections 65863.7 and 66427.4,which authorize the city to require park owners who want to close a park orconvert it to another use to provide reasonable relocation assistance as acondition of closing and converting a park.

This chapter is adopted pursuant to Government Code Sections 65863.7and 66427.4 and the city’s police power to provide a procedure andstandards for assessing the adverse impacts of a mobilehome park closureor conversion on the displaced mobilehome owners residing in the parkthat is being closed and to determine appropriate relocation assistance forthose residents.

RJN, Exhs. A, B.


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


After the application is complete and the Relocation Impact Report provided to the

residents, a qualified hearing officer holds a noticed hearing. RJN, Exh. B [PAMC § 9.76.040(a)

– (f)]; see also Complaint, ¶ 38. “The hearing officer shall approve the application on the

condition that the mitigation measures proposed by the park owner are adequate to mitigate the

adverse impacts on the displaced residents and may condition the approval on additional

conditions, including, but not limited to” several conditions set forth in the Ordinance, provided

that the conditions do not exceed the “reasonable costs of relocation.” RJN, Exh. B [PAMC

§ 9.76.040(g)].5

“Any aggrieved person may appeal the hearing officer’s decision to the city council,”

pursuant to procedures set forth in the Municipal Code. RJN, Exh. B [PAMC § 9.76.060].

“The city’s approval of a conversion application shall not be valid and effective until the

park owner has filed a certificate of acceptance of the conditions of approval with the city.” RJN,

Exh. B [PAMC § 9.76.050].

The Ordinance includes exceptions to the requirement to provide relocation assistance,

including total and partial exemptions where imposition of relocation assistance requirements

“would eliminate substantially all reasonable or economic value ….” RJN, Exh. B [PAMC

§ 9.76.080(b), (c)]. The park owner’s application must provide evidence to support an exemption

claim. RJN, Exh. B [PAMC § 9.76.080(b), (c)].

B. The City Approved Plaintiffs’ Application to Convert the Buena Vista MobilehomePark, Which Plaintiffs Formally Accepted per PAMC § 9.76.050.

Plaintiffs have owned the Buena Vista Mobilehome Park (“Buena Vista MHP”) since

1986. Complaint, ¶ 9. The Buena Vista MHP is the only mobilehome park in the City.

Complaint, ¶ 20. It has 96 occupied mobilehome spaces (along with a single-family home and 12

studio apartments, which are not at issue) and is located at 3980 El Camino Real, Palo Alto.

Complaint, ¶ 15. The mobilehomes are owned by the tenants. Complaint, ¶ 10.

In November 2012, Plaintiffs applied to close the Buena Vista MHP. Complaint, ¶ 45.

5 The closure conditions will vary depending on whether the mobilehome may berelocated. PAMC § 9.76.040; see also Complaint, ¶¶ 39-42.


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


After Plaintiffs submitted a satisfactory Relocation Impact Report, hearings were conducted on

May 12, 13 and 14, 2014. Complaint, ¶¶ 45-46, 48. The hearing officer considered oral and

written evidence and arguments. Complaint, ¶ 48. On September 30, 2014, the hearing officer

issued a written decision, conditionally approving the closure. Complaint, ¶¶ 49-50. Plaintiffs

did not file an administrative appeal. Rather, the residents association did. Complaint, ¶ 51.

The City Council heard the residents’ appeal in April and May 2015. Both Plaintiffs and

their tenants offered evidence and argument to the City Council. Complaint, ¶¶ 51, 53.

Plaintiffs defended the hearing officer’s decision, which was based in part on mitigation

measures Plaintiffs had proposed, and asserted that the measures satisfy state and local law. City

Council’s Findings and Statement of Decision, pp. 4, 6 [Exh. A to Exh. D to RJN]. The City

Council agreed with Plaintiffs and denied the residents’ appeal. On May 26, 2015, the City

Council issued its final decision, conditionally approving the closure. Complaint, ¶¶ 51, 53.

Plaintiffs do not allege that they ever asserted that enforcement of the Ordinance would

eliminate substantially all reasonable use or economic value of the property, which are grounds

for an exemption under section 9.76.080, subdivisions (b) and (c), of the Municipal Code.

Plaintiffs acknowledge that they may close the park upon satisfying the conditions of the

City’s approval and providing their tenants six months’ notice. Complaint, ¶¶ 43, 53. However,

they neglect to mention that they formally accepted the City Council’s decision, pursuant to

section 9.76.050 of the Ordinance (quoted above). On August 31, 2015, Plaintiffs provided a

duly-executed Certificate of Acceptance. Plaintiffs attached the City Council’s May 26, 2015

decision to the Certificate. Plaintiffs’ counsel also transmitted a letter which stated, inter alia:

This letter confirms the Park Owner’s acceptance of the Palo Alto CityCouncil’s May 26, 2015 decision and findings …. Enclosed please findthe executed certificate.

As you are also likely well aware, the Jisser Family received noticeyesterday that the Buena Vista Residents Association has filed a lawsuitagainst the Park Owner and the City of Palo Alto. The lawsuit seeks toreverse the City’s decision and to enjoin any further steps by the ParkOwner to close Buena Vista.

[T]he Park Owner had fully met its burden under the City’s ConversionOrdinance. Therefore the Park Owner now formally accepts the City’sdecision regarding the park closure.


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


RJN, Exh. D (emphasis added).

C. The Residents Association Filed Suit in State Court; Plaintiffs Did Not.

As referenced in Plaintiffs’ acceptance of the closure decision, on August 24, 2015, the

Buena Vista MHP Residents Association filed a state court complaint (“State Complaint”) to

invalidate the decision. RJN, Exh. C; see also Plaintiffs’ Notice of Pendency of Other Actions,

filed herein on Nov. 19, 2015. The State Complaint names Plaintiffs as Real Parties-in-Interest.

RJN, Exh. C. Plaintiffs did not similarly seek judicial relief in the state courts, whether by a writ

petition, complaint for declaratory or injunctive relief, or inverse condemnation claim.

D. Even Though They Did Not Exhaust Administrative or State Court Remedies,Plaintiffs Filed this Federal Court Action.

Despite accepting the City’s decision and not filing suit in state court, Plaintiffs filed this

action. They claim that the City’s approval of their application will take approximately $8

million, in violation of the Takings Clause of the Fifth Amendment. Complaint, ¶¶ 65, 70-100.

But they disavow any claim for just compensation. They seek only to invalidate the City’s

approval. Complaint, ¶¶ 87, 89, 105. Plaintiffs allege two federal claims and one state claim:

1. Inverse Condemnation (unconstitutional exaction). Complaint, ¶ 70 et seq.

2. Inverse Condemnation (private taking). Complaint, ¶ 89 et seq.

3. Violation of the State’s Mobilehome Residency Law. Complaint, ¶ 101 et seq.

III. DISCUSSION

A. Standards for Rule 12(b)(1) and 12(b)(6) Motions.

A motion to dismiss may be brought when the court lacks subject matter jurisdiction over

the claims asserted or when the petition fails to state a claim upon which relief may be granted.

Fed. R. Civ. P. 12(b)(1), (b)(6). The Court should consider the well-pleaded allegations, any

exhibits attached to the complaint, and matters properly subject to judicial notice. Outdoor Media

Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 2007). The Court should not

accept conclusory allegations. Rather, it should “begin ‘by identifying pleadings that, because

they are no more than conclusions, are not entitled to the assumption of truth.’” Telesaurus VPC,

LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citations omitted). The Court must disregard

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


statements….” Id. (citations omitted). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Id. (citations omitted).

B. Plaintiffs’ Theories Lack Foundation and Go Too Far in Trying to Extend the Law.

As an overarching matter, Plaintiffs’ efforts to extend takings jurisprudence go too far.

First Count: Plaintiffs suggest that Koontz v. St. Johns River Water Mgmt. Dist., 133 S.Ct.

2586, 2594 (2013), creates new law authorizing injunctive relief for monetary exactions and

obviating ripeness rules. They are mistaken. Koontz was a modest, logical extension of the

unconstitutional exactions doctrine set forth in Nollan v. California Coastal Comm’n, 483 U.S.

825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) (“Nollan/Dolan Doctrine”).

“[T]he Takings Clause presupposes that the government [] acted [for] a valid public

purpose…. It does not bar the government from interfering with property rights.” Lingle v.

Chevron U.S.A., 544 U.S. 528, 543 (2005). It conditions right to take upon payment of just

compensation. Id. While “[t]he paradigmatic taking … is a direct government appropriation or

physical invasion of private property,” the Takings Clause also applies if regulation goes “too

far.” Id. at 537-38.6

The Nollan/Dolan Doctrine “protects the Fifth Amendment right to just compensation for

property the government takes when owners apply for land-use permits.” Koontz, 133 S. Ct. at

2594. An unconstitutional exaction “amount[s] to a per se taking similar to the taking of an

easement or a lien.” Id. at 3600 (citing Nollan, 483 U.S. at 831, and Dolan, 512 U.S. at 384).

Thus, a Nollan/Dolan claim is simply an alternative theory upon which to allege that the

government has taken property per se. Id.; cf. Yee, 503 U.S. at 534-35 (physical and regulatory

takings claims “are not separate claims. They are, rather, separate arguments in support of a

single [takings] claim ….” [Emphasis in original]).

6 Thus, the validity of regulatory action is not at issue. Id. at 543 (substantially-advances-legitimate-state-interest test discarded); First English Evangelical Lutheran Church of Glendalev. Los Angeles County, 482 U.S. 304, 321 (1987) (condemnation—eminent domain or inverse—islegislative action upon which courts do not pass judgment).


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


As such, standard takings rules apply. For example, the remedy for an unconstitutional

exaction imposed by an administrative decision is just compensation, not an injunction. Nollan,

483 U.S. at 841-42 (California retained authority to decide whether to impose the condition, “but

if it wants an easement across the Nollans’ property, it must pay for it”). Further, the Ninth

Circuit held that a district court properly dismissed an as-applied Nollan/Dolan claim for

injunctive relief because the plaintiff failed to ripen the claim by seeking just compensation in

state court. Daniel v. County of Santa Barbara, 288 F.3d 375, 381-82 (9th Cir. 2002).

Koontz did not change the rules. After an agency denied a land use application because

the applicant refused to pay for improvements to agency-owned wetlands, Koontz filed, in state

court, an as-applied Nollan/Dolan claim, for damages. The Florida Supreme Court rejected the

claim, ruling that a monetary exaction does not give rise to a Nollan/Dolan claim. Koontz, 133

S.Ct. at 2592-94. The Supreme Court reversed. It held that Nollan/Dolan applies to monetary

exactions and remanded to the state court to rule on the merits. Id. at 2599, 2603. Thus, Koontz

merely extended Nollan/Dolan to monetary exactions; it did not create new takings rules (e.g.,

authorizing injunctive relief or eliminating ripeness rules).

Second Count: Plaintiffs suggest that the subject relocation assistance requirements could

not satisfy the “public use” requirement of the Takings Clause. As discussed below, dispositive

authority is against their unfounded theory. See, e.g., Rancho de Calistoga v. City of Calistoga,

800 F.3d 1083 (9th Cir. 2015) (rejecting private takings challenge to mobilehome rent control).

C. The First and Second Counts Should Be Construed as Facial Claims, for Which theStatute of Limitations Has Expired.

1. Because They Challenge the Legality of Legislation, Not the Manner in Whichthe City Applied the Ordinance, Plaintiffs Actually Allege Facial Claims.

The first and second counts seek to allege inverse condemnation claims pursuant to 42

U.S.C. section 1983. Complaint, ¶¶ 71, 84, 90, 97.7 Plaintiffs plead baseless facial claims.

7 A plaintiff has no direct claim under the Constitution. Rather, “a litigant complaining ofa violation of a constitutional right must utilize 42 U.S.C. § 1983,” including when the TakingsClause is at issue. Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992);Martinez v. City of Los Angeles, 141 F.3d 1373, 1382 (9th Cir. 1998) (“a plaintiff may not sue astate defendant directly under the Constitution where section 1983 provides a remedy, even if that


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


A facial claim asserts that the legislation itself effectuates a taking; “an as-applied

challenge involves ‘a claim that the particular impact of a government action on a specific piece

of property requires the payment of just compensation.’” Ventura Mobilehome Communities

Owners Ass’n v. City of San Buenaventura, 371 F.3d 1046, 1051 (9th Cir. 2004) (quoting Levald,

Inc. v. City of Palm Desert, 998 F.2d 680 (9th Cir. 1993)). A facial claim is at issue where the

property owner alleges that the mere enforcement of legislation is a taking, irrespective of the

scope of the economic impact. See Yee, 503 U.S. at 534. For example, in Yee, a mobilehome

owner challenged enforcement of a mobilehome rent control ordinance. The claim did not

“depend on the extent to which petitioners are deprived of the economic use of their particular

pieces of property or the extent to which these particular petitioners are compensated.” Id.

Rather, because the park owners challenged the fundamental legitimacy of the ordinance, the

owner alleged a facial claim. Id.;8 accord Guggenheim v. City of Goleta, 638 F.3d 1111, 1115,

1118-19 (9th Cir. 2010) (mobilehome park owners presented facial takings challenge to rent

control legislation, asserting that the ordinance unconstitutionally shifted value from park owner

to residents, which did not depend on the extent of any economic impact).

Where the plaintiff’s allegations reveal that a purported as-applied claim is actually a

challenge to the effect of the legislation, rather than the particularized impact of an administrative

decision, the court properly treats the claim as a facial claim. Ventura Mobilehome Communities

Owners Ass’n v. City of San Buenaventura, 371 F.3d 1046, 1051 (9th Cir. 2004). In Ventura

Mobilehome Communities, a park owners association asserted that it presented an as-applied

challenge regarding the effect of the rent control legislation upon park owners. The plaintiff

claimed that vacancy decontrol provided a monetary benefit to the mobilehome owners, who

remedy is not available to the plaintiff”). This rule applies to declaratory relief claims. Ward v.Caulk, 650 F.2d 1144, 1148 (9th Cir. 1981) (“no basis for permitting a constitutionally based suitagainst state defendants where the plaintiff has a statutory remedy under section 1983”); Monellv. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690, (1978) (section 1983 authorizessuits for monetary or equitable relief for violations of federal law).

8 In Yee, the park owners claimed that the ordinance did not substantially advance alegitimate state interest, which test the Supreme Court has repudiated (Lingle, 544 U.S. at 545).But Yee did not turn on the application of that test (Yee, 503 U.S. at 534-38); it remains good law.


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


could obtain a premium upon selling their homes, which value was taken from the park owners.

The district court properly construed the claim as a facial challenge, “concluding that allegations

of improper premiums from vacancy control are inherently facial because the premium is a direct

result of the ordinance’s enactment.” Id.

The Ninth Circuit has also recently held that a purported “private taking” challenge to

mobilehome rent control—based on the theory that the enforcement of the legislation caused an

unconstitutional transfer of money from the park owner to the tenants—was a “thinly veiled facial

challenge.” Rancho de Calistoga, 800 F.3d at 1093. The facial claim was time barred (pursuant

to the un-appealed district court ruling), and without merit (as discussed below). Id. at 1092-93.

Here, too, Plaintiffs actually present a facial challenge. Neither of their two takings

claims depends on the scope of the alleged taking or impact to their property rights. Rather,

Plaintiffs’ theory harkens back to the failed facial claims of Yee, Ventura Mobilehome

Communities and Rancho de Calistoga, asserting that the City has violated the Takings Clause by

requiring them to transfer property to their residents. Notably, Plaintiffs do not claim that any

lesser amount might pass muster under the Takings Clause. Nor do they claim that payment by

the City of “just compensation” would render the City’s enforcement of the Ordinance lawful. In

short, Plaintiffs’ claims do not “depend on the extent to which petitioners are deprived of the

economic use of their particular pieces of property or the extent to which these particular

petitioners are compensated” (Yee, 503 U.S. at 534), but on the fundamental legality of the

regulation. Accord Levin v. City & Cty. of San Francisco, 71 F.Supp.3d 1072, 1087 (N.D. Cal.

2014) (re: takings challenge to relocation assistance ordinance: “this Court’s analysis on a facial

challenge does not depend on the dollar amount due in any individual case”). Thus, the Court

should treat Plaintiffs’ claims for what they are, facial takings claims.9

9 Consider also that Plaintiffs seek injunctive relief to preclude application of theOrdinance, not just compensation. As such, they are not claiming that application of theregulation was excessive and thus a taking, but that the legislation may not be enforced because itis unconstitutional to command Plaintiffs to provide financial assistance to their residents. That isa facial claim, which mimics the Yee claim for injunctive relief. See Yee, 503 U.S. at 525, 532.


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


2. Plaintiffs’ Claims Are Time Barred.

a. The Claims Accrued When the City Adopted the Ordinance.

A facial takings claim accrues when the ordinance is adopted. Guggenheim, 638 F.3d at

1119; Colony Cove Properties, LLC v. City of Carson, 640 F.3d 948, 956 (9th Cir. 2011);

Milpitas Mobile Home Estates v. City of Milpitas, 2013 WL 4504877, at *3 (N.D. Cal. Aug. 21,

2013). For example, in Guggenheim, the commencement of the injury was the adoption of rent

control legislation—irrespective of the allegedly unlawful, suppressed rents which thereafter

transferred particular sums to the mobilehome owners. Guggenheim, 638 F.3d at 1119-20.

Indeed, after the adoption of rent control, the park owners and tenants made investment decisions

(e.g., re: acquisition of and improvements to mobilehomes) in reliance thereon. “Whatever

unfairness to the mobile home park owner might have been imposed by rent control, it was

imposed long ago;” elimination of the legislation would be a “windfall” to the park owners at the

expense of the mobilehome owners. Id. at 1112-22.

Here, Plaintiffs’ theory is the same: requiring park owners to provide financial assistance

to their tenants violates the Takings Clause by transferring wealth from the park owners to the

tenants. Id. at 1115. As in Guggenheim, Plaintiffs’ investment in the Buena Vista MHP has long

been burdened by the obligation to pay relocation assistance if they sought to close the park, and

their tenants invested in their homes with rights to relocation assistance in the event of closure.

Thus, the impact to Plaintiffs was when they became subject to the Ordinance. Id. at 1112-12,

1119-20; see also Rancho de Calistoga, 800 F.3d at 1093 (purported as-applied takings challenge

to mobilehome rent control decision was bogus attempt to restate time-barred facial claim).

Accordingly, Plaintiffs’ claims accrued when the City adopted the Ordinance.

b. The Limitations Period Expired Over a Dozen Years Ago.

In determining the statute of limitations for claims brought under 42 U.S.C. section 1983,

the courts look to the applicable state law statute of limitations for personal injury actions.

Colony Cove, 640 F.3d at 956. In California, claims that accrued prior to 2003 are subject to a

one-year statute of limitations. Canatella v. Van De Kamp, 486 F.3d 1128, 1132-33 (9th Cir.


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


2007) (citing Cal. Code Civ. Proc. § 335.1).10

The City adopted the Ordinance in 2001. RJN, Exhs. A, B. Plaintiffs filed this suit on

November 19, 2015, over a dozen years after the statute of limitations expired. Thus, these facial

takings claims are time barred. Colony Cove, 640 F.3d at 957 (Rule 12(b)(1) and (b)(6) motion

properly granted because facial claims filed more than two years after adoption of ordinance);

Milpitas Mobile Home Estates, 2013 WL 4504877, at *3 (Rule 12(b)(6) motion granted).

D. This Court Should Follow Yee, Which Rejected an Analogous Per Se Claim.

Even if the claims are not time barred, they fail, pursuant to Yee v. City of Escondido.

The gravamen of the first count is that the City is forcing Plaintiffs to “suffer[] the

unwanted occupation of their property by tenants.” Complaint, ¶ 81.

That claim is akin to the claim presented in Yee v City of Escondido, which the Supreme

Court considered and rejected as a per se takings claim. This Court should see through Plaintiffs’

attempt to circumvent the settled authority of Yee by dressing up an old and meritless argument as

a “new” claim under the unconstitutional exactions doctrine

In Yee, mobilehome park owners alleged that the combined effect of eviction restrictions

imposed by the State’s Mobilehome Residency Law and the city’s rent control provisions caused

the transfer of property from the park owner to the mobilehome owner and constituted physical

occupation. Yee, 503 U.S. at 527. The Court unanimously rejected the claim. Id. at 527-32, 539.

The park owner’s “tenants were invited by petitioners, not forced upon them by the government,”

and the park owner retained the right to close or convert the park under the Mobilehome

Residency Law. Id. at 528. In rejecting the park owners’ contention that the government had

effectively eliminated their “right to exclude,” the Court even cited section 798.56(g) of the

California Civil Code, which authorizes eviction after the owner has prepared a Relocation

Impact Report so that the local agency may require mitigation measures and payment of

relocation assistance. Id.11

10 Claims that accrued after January 1, 2003 are subject to a two-year statute. Id.11 The pertinent state laws remain unchanged. See RJN, Exhs. F, G.


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Here, Plaintiffs make an analogous claim that the City is compelling them to transfer

money to their tenants or to continue to allow their land to be occupied. As in Yee, they do not

claim that the value of any transfer makes any difference. Rather, they claim that any and all

transfer of money from the park owners to the mobilehome owners is a per se taking; or that the

effect of such conditions results in a per se taking. Moreover, the fact that Plaintiffs seek

injunctive relief—not any relief to the extent any relocation assistance is excessive (e.g., for

which just compensation would allegedly be due)—further demonstrates that Plaintiffs are

alleging a baseless per se takings comparable to the Yee claim. See id. at 525, 532.

Moreover, in Yee the Supreme Court analyzed the City of Escondido’s enforcement of

legislation which transferred property from park owners to tenants, together with the restrictions

of the State’s Mobilehome Residency Law. Because state and local law govern only park

owners’ “use of their property,” the Court held there was no “per se taking.” Yee, 503 U.S. at

532. Plaintiffs cannot circumvent Yee by substituting an unconstitutional exactions theory that is,

in effect, a per se claim.12 See Koontz, 133 S.Ct. at 2600.

Similarly, the gravamen of the second count (private takings) is that the City is requiring

“the transfer of money from the Jisser Family to other private persons—their tenants—as a

condition of the Jisser Family’s exercise of their right to withdraw the property from the rental

market”) (unconstitutional exaction). Complaint, ¶ 92. Such a private takings claim is not an

independent cognizable takings claim, but is merely an argument upon which to base a takings

claim. Rancho de Calistoga, 800 F.3d at 1092; cf. Yee, 503 U.S. at 534-35 (physical and

regulatory takings claims are alternative arguments in support of but one claim). Thus, Yee also

applies to the second count.

Accordingly, this Court should follow the on point, supreme authority of Yee.13

12 To rule that the subject relocation assistance payment requirements are unconstitutionalexactions (which are effectively per se takings) would require the abrogation of Yee’s holdingthat the combined effect state and local law, which transfers value from the park owner to tenants,are not per se takings (which is the underlying basis for a Nollan/Dolan claim).

13 Plaintiffs may assert that, rather than follow the Supreme Court, this Court shouldfollow a recent district court decision (Levin, 71 F. Supp. 3d 1072) to find relocation assistancepayments are a per se taking/ unconstitutional exaction. Levin is inapposite and distinguishable.


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


E. Counts One and Two Fail Even If Construed to Be As-Applied Takings Claims.

In light of Yee v. City of Escondido and Plaintiffs’ formal and unconditional acceptance of

the City’s decision, it is clear that Plaintiffs cannot plead a cognizable, unconstitutional exactions

claim which is not based on the extent of any alleged take. Further, given the Ninth Circuit’s

decision in Rancho de Calistoga, Plaintiffs cannot plead a viable private takings claim. Thus, this

Court could summarily reject Plaintiffs’ effort to plead as-applied claims which do not allege that

the City excessively enforced the Ordinance, thereby taking property without just compensation.

Close consideration of takings law further demonstrates the claims’ lack of merit.

1. The Remedy for a Taking, Including an Exaction, Is Just Compensation.

Since 1987, California courts have provided just compensation as an adequate remedy for

takings claims. Carson Harbor Village, Ltd. v. City of Carson, 353 F.3d 824, 829 (9th Cir. 2004)

(“Carson Harbor II”); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 721

(1999) (“Even the State of California, where this suit arose, now provides a facially adequate

procedure for obtaining just compensation for temporary takings such as this one”); Equity

Lifestyle Properties, Inc. v. Cty. of San Luis Obispo, 548 F.3d 1184, 1193 (9th Cir. 2008).14

Whether just compensation is required is the issue even if the plaintiff claims that the

government confiscated money in violation of the Fifth Amendment. Brown v. Legal Found. of

Washington, 538 U.S. 216, 240 (2003) (whether the statute was a “per se taking requiring the

For example, in Levin, as here, a facial claim was at issue. Levin, 71 F.Supp.3d at 1087,1089; see also pp. 1083-84 n. 4. However, the Levin plaintiffs filed suit within a year of theadoption of the ordinance. Id. at 1074. Thus, their suit was timely, whereas Plaintiffs here filedtheir Complaint over dozen years too late. Moreover, Yee is on point for the case at bar.

14 By contrast, where the plaintiff presents a facial takings challenge to legislation thatcommands the plaintiff to pay an unlawful sum for which just compensation is not an availableremedy, the plaintiff may seek injunctive relief. See Eastern Enterprises v. Apfel, 524 U.S. 498,499 (1998); Washington Legal Found. v. Legal Found. of Washington, 271 F.3d 835 (9th Cir.2001) aff'd sub nom. Brown v. Legal Found. of Washington, 538 U.S. 216 (2003).

However, as discussed below, where an as-applied claim is at issue, a federal court cannotevaluate the extent of the alleged take until the plaintiff seeks (1) administrative relief and(2) state court remedies (equitable and monetary) such that the federal court could evaluate ifthere was a violation of the Takings Clause and, if so, to what extent. Since Plaintiffs soughtneither, any as-applied claim is barred, as discussed below.


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


payment of ‘just compensation’” was the issue in a takings challenge to a statute that transfers to

a third party (legal-aid fund) the accrued interest on lawyers’ deposits of client funds).

Similarly, just compensation is the remedy under the Nollan/Dolan Doctrine. As the

Supreme Court held in its seminal exactions case, whether to impose the exaction was for the

State to decide, “but if it wants an easement across the Nollans’ property, it must pay for it.”

Nollan, 483 U.S. at 841-42. Indeed, the Ninth Circuit has ruled that the State provides just

compensation as an adequate remedy for unconstitutional exaction claims. Daniel, 288 F.3d at

381-82. The failure to seek this remedy bars the claim, as discussed next.

2. Plaintiffs Have Not Presented a Ripe As-Applied Takings Claim.

a. A Property Owner Cannot State an As-Applied Claim Until It Has(a) Obtained a Final Administrative Decision and (b) Pursued WritRelief and Just Compensation in State Court.

Consistent with the foregoing, a property owner may not state a federal claim until it has

(1) obtained a “final, definitive position regarding how it will apply the regulations at issue to the

particular land in question,” and (2) exhausted state court remedies. Williamson County Regional

Planning Com'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 191, 194-95 (1985).

Under the first requirement, the property owner must provide the government an

opportunity to issue an alternative, less draconian decision. Sinclair Oil, 96 F.3d at 405. The

reason is that “[a] court cannot determine whether a regulation has gone ‘too far’ unless it knows

how far the regulation goes.” MacDonald, Sommer & Frates v. Yolo Cty., 477 U.S. 340, 348

(1986). Thus, the federal courts dismiss takings claims if the property owner has not sought

administrative relief because, prior thereto, the extent of any taking cannot be shown. Id. at 351;

Sinclair Oil, 96 F.3d at 408 (claim dismissed because plaintiff did not seek administrative relief).

As to the second requirement:

The Fifth Amendment does not proscribe the taking of property; itproscribes taking without just compensation…. [I]f a State provides anadequate procedure for seeking just compensation, the property ownercannot claim a violation of the Just Compensation Clause until it hasused the procedure and been denied just compensation.

Williamson County, 473 U.S. at 194-95 (emphasis added). “Therefore, there is no constitutional

injury until the plaintiff has availed himself of the state’s procedures for obtaining compensation


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


for the injury, and been denied ….” San Remo Hotel v. City and County of San Francisco, 145

F.3d 1095, 1102 (9th Cir. 1998).

To satisfy the second requirement, a California property owner must file a timely petition

for a writ of mandate to reverse the local agency’s decision. Sinclair Oil Corp., 96 F.3d at 408-09

(discussing Hensler v. City of Glendale, 8 Cal.4th 1 (1994)); see also Carson Harbor II, 353 F.3d

at 830. The reason is that the property owner cannot seek a remedy in federal court for a

constitutional violation if the owner has not timely sought to set aside the decision. Carson

Harbor II, 353 F.3d at 830; Hensler v. City of Glendale, 8 Cal.4th 1, 14-15, 19, 25-27. This

follows from the fundamental law that a property owner cannot seek a remedy for the taking until

it has provided the government an opportunity to determine whether to rescind the

unconstitutional decision, thereby avoiding a permanent taking, or to proceed to condemn the

property, in which case just compensation will be due. Carson Harbor II, 353 F.3d at 830;

Colony Cove, 640 F.3d at 958; Hensler, 8 Cal.4th at 11-12; see also Lucas v. S. Carolina Coastal

Council, 505 U.S. 1003, 1030 n.17 (1992) (government must be given chance to rescind its action

in response to a state court ruling regarding its legality, before plaintiff may seek a remedy for a

takings); First Lutheran Church, 482 U.S. at 321 (same). Accordingly, federal courts dismiss

takings claims if the owner did not pursue a writ and takings claim in state court. Colony Cove,

640 F.3d at 959; Carson Harbor II, 353 F.3d at 830.15

b. The Courts Dismiss Unripe Exaction and Private Takings Claims.

Thus, the courts dismiss as-applied unconstitutional exaction claims if the property owner

has not sought a state court remedy, even if the plaintiff seeks injunctive relief. Daniel, 288 F.3d

at 381-82 (district court properly granted motion to dismiss unconstitutional exaction claim

seeking injunctive relief because plaintiff failed to seek state court remedy); accord Sanchez v.

City of Fresno, 914 F.Supp.2d 1079, 1014 (E.D. Cal. 2012) (even where the government has

15 The courts often use the term “ripeness” to describe the rule. But this term should notbe misconstrued to imply that a property owner can always “ripen” its suit by seeking relief instate court. “[T]he Williamson County requirements [to seek both administrative and state courtrelief] may reveal the claim to be either unripe (too early) or overripe (too late).” PascoagReservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 94 n.7 (1st Cir. 2003).


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


physically taken personal property, the district court must dismiss a federal takings claim if the

plaintiff has not sought relief in state court).

This rule also applies to private takings claims. In Rancho de Calistoga, the Ninth Circuit

considered to a mobilehome park owner’s claim that rent control constituted a private taking.

The Court explained that the claim was “simply a renaming of the regulatory takings claim,

which seeks to determine whether a property regulation is ‘functionally equivalent to the classic

taking in which government directly appropriates private property or ousts the owner from his

domain.’” Rancho de Calistoga, 800 F.3d at 1092 (quoting Lingle, 544 U.S. at 539). The

regulatory takings claim was ripe, only because the park owner had filed a state court action and

had pursued its (meritless) claim to the State’s appellate courts. (Id. at 1089.)

c. Plaintiffs’ Federal Takings Claims Are Not Ripe.

Plaintiffs satisfied neither ripeness requirement.

First, the conversion application did not seek either a complete or partial exemption under

section 9.76.080 of the Ordinance. Rather, Plaintiffs proposed many of the mitigation measures

and defended residents the hearing officer’s decision against the residents’ administrative appeal.

Thus, the City never had an opportunity to determine whether a lesser amount of relocation

assistance would preserve for Plaintiffs reasonable economic use of their property, avoiding (or

limiting) a potential takings. By not seeking a final, definitive administrative decision regarding

the application of the Ordinance such that a court could analyze the scope of the alleged take,

Plaintiffs failed to ripen their claim. Under the on-point authorities (e.g., Williamson, McDonald,

Daniel, Sinclair Oil), this Court should dismiss.

Second, while the Residents Association filed the State Complaint, Plaintiffs did not seek

equitable or monetary relief in state court. Instead, they affirmatively accepted the decision.

Under the case law discussed above (e.g., Williamson, First Lutheran Church, Carson Harbor II,

Hensler), Plaintiffs cannot bypass state court to pursue this action, whether they purport to claim

an unconstitutional exaction (Nollan, Daniel) or private taking (Rancho de Calistoga).

d. The As-Applied Claims Cannot Be Ripened.

If the property owner fails to timely file suit within the statute of limitations for a writ


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


petition, any takings claim is forever barred. As the California Supreme Court explained, the 90-

day statute for writ petitions applies to associated takings claims (even though the State has a

three-year and a five-year statute of limitations for takings claims, depending upon whether a

regulatory or physical taking is at issue). Hensler, 8 Cal.4th at 21-26. The property owner must

first present a timely and meritorious challenge to the administrative decision, to which the

government then has an opportunity to determine whether to modify its action, such that the

remedy for the taking, if any, can be determined. Hensler, 8 Cal.4th at 24-25. Accordingly,

Hensler held that the property owner’s inverse condemnation claim was barred by his failure to

file suit within the 90-day statute of limitations for a challenge the land use decision. Id. at 21-22.

When a property owner ignores Hensler and files suit in federal court, the courts dismiss.

For example, where a plaintiff filed suit in federal court against the County of Santa Barbara,

alleging state and federal takings claims, the district court properly dismissed both counts as

unripe, citing Hensler among other authorities. Sinclair Oil, 96 F.3d at 407-08. The Court

implied that the claims could not ripen. See id. In Daniel, the Ninth Circuit expressly held that

an unripe claim is forever barred if the statute of limitations to bring a state court action has

expired. Daniel, 288 F.3d at 382 (unconstitutional exaction claim, which sought injunctive relief,

barred by failure to timely file a state court action).16

16 Other Circuit Courts are in accord. See Harbours Pointe of Nashotah, LLC v. Vill. ofNashotah, 278 F.3d 701, 706 (7th Cir. 2002) (“unexcused failure to exhaust adequate statutoryremedies,” by filing suit within the state’s 90-day statute of limitations for the underlyingsubstantive law, forfeited the federal takings claim); Pascoag Reservoir & Dam, LLC v. RhodeIsland, 337 F.3d 87, 94 (1st Cir. 2003) (“By failing to bring a timely state cause of action,[plaintiff] forfeited its federal [takings] claim”); Liberty Mut. Ins. Co. v. Brown, 380 F.3d 793,798 (5th Cir. 2004) (same, and explaining that “[a]ny other rule would allow plaintiffs tocircumvent state court by failing to comply with state procedural requirements for bringinginverse condemnation claims, thereby nullifying Williamson County’s requirement that theplaintiff avail itself of the available state procedures for obtaining compensation”); HollidayAmusement Co. of Charleston, Inc. v. South Carolina, 493 F.3d 404, 409 (4th Cir. 2007) (same);Gamble v. Eau Claire County, 5 F.3d 285, 286 (7th Cir. 1993) (because plaintiff dismissed statesuit challenging land use decision, she could not state a federal takings claim); California-NevadaAnnual Conference of the Methodist Church v. City & Cty. of San Francisco, 74 F.Supp.3d 1144,1162 and n. 7 (N.D. Cal. 2014) (motion to dismiss for failure to state a takings claim granted,favorably citing Hensler); see also Nicky Rottens Inv. Group, Inc. v. City of Coronado (S.D. Cal.,Nov. 27, 2012) 2012 WL 5944235, at *5 et seq. (civil rights action re: land use project not ripebecause of absence of state court writ petition).


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Here, Plaintiffs affirmatively accepted the City Council’s decision and did not file suit

within the 90-day statute of limitations of Cal. Cod. Civ. Proc. § 1094.6. See RJN, Exhs. B, D

[PAMC § 9.76.140 and City Council Decision]. Thus, this Court should deny Plaintiffs leave to

amend because Plaintiffs are precluded from filing a valid claim.

F. The Second Count (the Private Takings Claim) Has Been Soundly Rejected.

The second count fails for an additional reason. It is yet another attempt by a mobilehome

park owner to claim that the regulation of the landlord-tenant relationship violates the “public

use” requirement of the Takings Clause by transferring property from the park owner to

mobilehome owners. This Court should follow unequivocal authority rejecting these claims.

The issue was most recently addressed in Rancho de Calistoga. At issue was a claim that

the application of a mobilehome rent control ordinance transferred property from the park owner

to its tenants, violating the “public use” requirement of the Takings Clause. Rancho de Calistoga,

800 F.3d 1083 at 1092. The Ninth Circuit soundly rejected the claim, swatting away the park

owner’s various efforts to spin its claim in a manner that would pass muster. Id. at 1092-93.

In Rancho de Calistoga, the plaintiff’s “private takings” claim could be interpreted (1) as

an as-applied regulatory takings claim or (2) as a thinly-veiled facial claim. The claim failed

under each approach. As to the former, the park owner’s “’private takings claim’ cannot serve as

an independent means to challenge an alleged regulatory taking. Rather, such a public-use

challenge must function as part of the larger regulatory takings claim ….” Id. at 1092. Because

the regulatory takings claim failed, the “private takings” claim failed. Id. at 1090-92. Here too,

Plaintiffs’ takings claim fails for reasons set forth above (e.g., the claim is barred by the failure to

seek relief in state court), thus requiring rejection of the purported “private takings” claim.

As to the latter, Rancho de Calistoga’s “self-styled ‘private takings claim’” was in truth a

time-barred, meritless facial claim. Id. at 1093. The park owner effectively conceded the claim

was time barred by not appealing the district court’s dismissal based on failure to file suit within

the two-year statute of limitations for a facial takings claim. Id. In any event, the claim was

meritless because the park owner could not, as a matter of law, present a viable challenge to

mobilehome park regulations, even if they restricted the park owner’s use of the property and


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


limit the park owner’s return on investment. Id.

The Court admonished the park owner for presenting an intellectually bankrupt attempt to

create a viable private takings theory. As the opening paragraph of the opinion states:

Fifth Amendment takings challenges to mobile home rent control lawsare ubiquitous …. Quoting Yogi Berra, we have previously characterizedthese claims as “deja vu all over again.” [Citation.] Each time a courtcloses one legal avenue to mobile home park owners seeking to escape rentcontrol regimes, the owners, undaunted, attempt to forge a new path viaanother novel legal theory. This time, it is in the form of an “as-appliedprivate takings claim” as a claim separate and independent from the owner'sregulatory takings claim. Alas, it is also deja vu again with respect to theresult; we decline to open the door to using this so-called “privatetakings claim” as an end-run around established regulatory-takingsjurisprudence. We hold that no regulatory taking occurred here and thatRancho de Calistoga’s self-styled “private takings claim” is not a separatelycognizable claim. We affirm the district court’s dismissal of the case.

Id. at 1086-87 (emphasis added).

Other cases demonstrates that Rancho de Calistoga was “déjà vu all over again.” In 2007,

the Ninth Circuit rejected a “private takings” challenge to rent control, explaining that local

agencies advance legitimate public uses when they restrict rents and limit landlords’ ability to

evict. Action Apt. Ass’n v. Santa Monica Rent Control Opinion Bd., 509 F.3d 1020, 1024 (9th

Cir. 2007). In 2010, the Ninth Circuit rejected a claim that mobilehome rent control

unconstitutionally transferred wealth from the park owner to the mobilehome owners. As the

Court explained, invalidation of mobilehome rent control would transfer wealth in the other

direction—from mobilehome owners, who have relied on the legislation, to mobilehome park

owners, who would obtain a windfall through a sudden increase in property value. Thus,

retention of the legislation was not an unauthorized private taking. Guggenheim, 638 F.3d 1111

at 1121; see also Levin, 71 F.Supp.3d at 1080 (relocation assistance ordinance satisfied Public

Use Clause). These cases show that the regulation of the landlord-tenant relationship—in a

manner that provides a monetary benefit to residents and protects them from the impacts of

eviction—is a legitimate public use and prevents unwarranted increases in the land owner’s

property value, to the tenants’ financial harm, that would be caused by invalidation of the

regulation. See also Milpitas Mobile Home Estates, 2013 WL 4504877, at *3-5.

///


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Yet Plaintiffs rehash these failed claims. As in the Ninth Circuit precedents, Plaintiffs are

alleging that the City is unconstitutionally transferring property from the Buena Vista MHP

owner to the mobilehome owners. But as Guggenheim explains, the elimination of the regulation

at issue would actually do the opposite. By eliminating the obligations imposed by the City, the

value of Plaintiffs’ property would suddenly jump, at the expense of the tenants. And as Rancho

de Calistoga and Action Apt. Ass’n explain, the preservation of the regulatory obligation imposed

on Plaintiffs satisfies the public use requirement by protecting vulnerable mobilehome owners

from the harm that would be occasioned by the necessity to pay increased rent and eviction.17

In sum, under established authority, Plaintiffs cannot plead a private takings claim.18

G. The Court Should Not Exercise Supplemental Jurisdiction Over the Third Count.

A district court may decline to exercise supplemental jurisdiction over state law claims

where it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.

§ 1367(c)(3); Carlsbad Tech., Inc. v. HIF Bio., Inc., 556 U.S. 635, 639 (2009). Where “’all

federal-law claims are eliminated before trial, the balance of factors to be considered under the

pendent jurisdiction doctrine – judicial economy, convenience, fairness, and comity – will point

17 Note that the Supreme Court has emphatically rejected Plaintiffs’ analytical approach.The “public use” requirement is co-extensive with the government’s police powers and subject todeferential rational basis review. Kelo v. City of New London, 545 U.S. 469, 488 (2005). TheFifth Amendment provides “legislatures broad latitude in determining what public needs justifythe use of the takings power.” Id. at 483. A city’s action need only be “rationally related to aconceivable public purpose.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240-41 (1984).Under this low threshold, the Supreme Court has readily dispensed with private takings claims.See Kelo, 545 U.S. at 480 “Without exception, our cases have defined” public purpose “broadly,reflecting our longstanding policy of deference to legislative judgments in this field”).

Applying this flexible and deferential standard, the courts have repeatedly held thatregulation of the landlord-tenant relationship is a legitimate public purpose. See, e.g., Pennell v.San Jose, 485 U.S. 1, 13 (1988); Guggenheim, 638 F.3d at 1123, n. 52; Action Apt. Ass’n, 509F.3d at 1024; Equity Lifestyle Properties, Inc. v. County of San Luis Obispo, 548 F.3d 1184, 1194(9th Cir. 2008); Richardson v. City and County of Honolulu, 124 F.3d 1150, 1158 (9th Cir. 1997).

18 In truth, these “private takings” claims are efforts to resuscitate the discarded test ofwhether the challenged action substantially advances a legitimate state interest. See Kelo, 545U.S. at 488. This Court should not succumb to Plaintiffs’ effort to circumvent the applicable law.


O AKLAND

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


toward declining to exercise jurisdiction over the remaining state-law claims.’” Sanford v.

MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (citation omitted).

“Exercising supplemental jurisdiction would neither promote judicial economy nor

convenience to the parties.” Multi Denominational Ministry of Cannabis & Rastafari, Inc. v.

Gonzales, 474 F.Supp.2d 1133, 1148 (N.D. Cal. 2007). Accordingly, upon granting the City’s

motion to dismiss Plaintiffs’ two federal question claims, it should decline to exercise

supplemental jurisdiction over Plaintiffs’ third claim for violation of California Mobilehome

Residency Law. Native Vill. of Kivalino v. ExxonMobil Corp., 663 F.Supp.2d 863, 882-83 (N.D.

Cal. 2009) (declining to exercise supplemental jurisdiction over state law claims after dismissing

federal claims); see also Smith v. Lenches, 263 F.3d 972, 977-78 (9th Cir. 2001) (same).

IV. CONCLUSION

For the foregoing reasons, this Court should grant the City’s motion to dismiss.

Dated: December 22, 2015 BURKE, WILLIAMS & SORENSEN, LLP

By: /s/ Kevin D. SiegelKevin D. SiegelAttorneys for Defendant City of Palo Alto

Documents

NOTICE OF RULE 12(b)(1) AND 12(b)(6)MOTION TO DISMISS;2015cv05295/293015/20/0.pdf · 2016-06-22 · 5:15-CV-05295 EJD San Jose, California 95113, Defendant City of Palo Alto (the