Petition for Writ of Certiorari — David Kagan, et al., Petitioners v. City of Los Angeles, California, et al.

Appendix

Table of Contents

Memorandum Opinion (9th Cir. Nov. 10, 2022) ...... 1a

Order Re Defendants’ Motion to Dismiss

(C.D. Cal. Feb. 11, 2021) ........................................ 7a

Los Angeles Municipal Code § 151.30

Evictions for Owner, Family, or

Resident Manager Occupancy ............................. 17a

Complaint for Violations of the Civil Rights Act,

42 U.S.C. § 1983 (De Facto Physical Takings

Without Compensation and Denial of Due

Process) and Claim for Attorney’s Fees

Under 42 U.S.C. § 1988(b) [without exhibits] .... 24a

Appendix 1a

Filed Nov. 10, 2022

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID KAGAN; et al.,

No. 21-55233

Plaintiffs-Appellants, D.C. No.

2:20-cv-00515-DMGv.

ADS

CITY OF LOS ANGELES;

MEMORANDUM*

CITY OF LOS ANGELES

HOUSING AND

COMMUNITY

INVESTMENT

DEPARTMENT,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted June 15, 2022

Pasadena, California

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

Appendix 2a

Before: RAWLINSON and CHRISTEN, Circuit

Judges, and BENNETT,** Senior District Judge.

In this case, the district court dismissed with

prejudice constitutional claims by PlaintiffsAppellants Frank and Rachel Revere and David and

Judith Kagan (collectively, the “Owners”), private

landlords who were prohibited from evicting a

“protected status” tenant from one half of a Los

Angeles duplex to regain the unit for family use. As

the parties are familiar with the facts, we decline to

recite them. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

Takings Clause: “The Takings Clause of the

Fifth Amendment provides that ‘private property’

shall not ‘be taken for public use, without just

compensation.’” Ballinger v. City of Oakland, 24 F.4th

1287, 1292 (9th Cir. 2022) (quoting U.S. Const.,

amend. V). The Takings Clause applies to regulations

that are “functionally equivalent to the classic taking

in which government directly appropriates private

property or ousts the owner from his domain.” Lingle

v. Chevron U.S.A., Inc., 544 U.S. 528, 539 (2005). As

relevant here, the government effects a per se taking

whenever a regulation “requires an owner to suffer a

permanent physical invasion of her property”—

whatever the purpose of the invasion, and however

minor its impact. Id. at 538 (citing Loretto v.

** The

Honorable Richard D. Bennett, United States Senior

District Judge for the District of Maryland, sitting by

designation.

Appendix 3a

Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982)).1

The Owners contend that the City of Los Angeles

effected a permanent physical occupation when it

“granted the Tenant the permanent physical

occupation of the Property in perpetuity” by affording

him protective status pursuant to the City’s Rent

Stabilization Ordinance (“RSO”) and prohibiting them

from reclaiming the Duplex for personal use. This

claim is foreclosed by Supreme Court precedent. See

Yee v. City of Escondido, 503 U.S. 519, 528–30 (1992)

(holding that similar laws “merely regulate

petitioners’ use of their land by regulating the

relationship between landlord and tenant,” and “do[]

not require petitioners to submit to the physical

occupation of their land”). Here, as in Yee, the Owners

“voluntarily rented their land,” and were not required

to submit to physical occupation by another. Id. at

527. Moreover, the RSO allows at-fault evictions, such

as evictions for creating a nuisance, breaking the law,

or failing to pay rent, L.A. Mun. Code § 151.09(A), and

grants landlords the right to end a protected tenancy

by removing the entire property from the rental

market with one year’s notice, id. § 151.23(B).

Accordingly, the Owners’ claim that the City has

compelled them to “refrain in perpetuity from

terminating” this tenancy is unavailing, Yee, 503 U.S.

at 528, and we affirm the dismissal of their takings

claim with prejudice.

1 As the Owners do not argue that a taking has occurred under

the three-factor inquiry outlined in Penn Cent. Transp. Co. v.

City of New York, 438 U.S. 104 (1978), we do not address this

form of taking here.

Appendix 4a

Substantive Due Process: “Substantive due

process cases typically apply strict scrutiny in the case

of a fundamental right and rational basis review in all

other cases.” Witt v. Dep’t of Air Force, 527 F.3d 806,

817 (9th Cir. 2008). As appellants cite no authority for

their contention that their right “to use and occupy

their own property” is a fundamental right, they can

only sustain a substantive due process claim if they

can allege that the RSO is “arbitrary, irrational, or

lacking any reasonable justification in the service of a

legitimate government interest.” Colony Cove Props.,

LLC v. City of Carson, 640 F.3d 948, 962 (9th Cir.

2011). The RSO’s stated purpose is to protect tenants

who are “displaced as a result of their inability to pay

increased rents” and left “unable to find decent, safe

and sanitary housing at affordable rent levels.” L.A.

Mun. Code § 151.01. Tenant protection is a legitimate

state interest. See, e.g., Schnuck v. City of Santa

Monica, 935 F.2d 171, 175 (9th Cir. 1991) (upholding

legitimate interest in “[c]ontrolling rents to a

reasonable level and limiting evictions [to]

substantially alleviate hardships to Santa Monica

tenants”). Accordingly, we affirm the dismissal of

Appellants’ substantive due process claim with

prejudice.

Procedural Due Process: “A procedural due

process claim has two elements: ‘(1) a deprivation of a

constitutionally protected liberty or property interest,

and (2) a denial of adequate procedural protections.’”

Miranda v. City of Casa Grande, 15 F.4th 1219, 1224

(9th Cir. 2021) (quoting Franceschi v. Yee, 887 F.3d

927, 935 (9th Cir. 2018)).2 Only the second element is

2 The City argues that Appellants have waived this claim, as

their opening brief refers to their procedural due process claim

Appendix 5a

at issue: Appellants claim that they “were expressly

denied a constitutionally adequate hearing on their

Application to obtain possession of the Property for

family purposes.”

“Notice and [a meaningful] opportunity to be

heard are the hallmarks of procedural due process.”

Ludwig v. Astrue, 681 F.3d 1047, 1053 (9th Cir. 2012)

(quoting Guenther v. C.I.R., 889 F.2d 882, 884 (9th

Cir. 1989)) (alteration in original). However, a

plaintiff alleging a constitutional due process claim

must plead the inadequacy of the available state

remedies. See, e.g., Lake Nacimiento Ranch Co. v.

Cnty. of San Luis Obispo, 841 F.2d 872, 878 (9th Cir.

1987). Although Appellants insist on appeal that

“there is no basis for contending that the appellants

are obligated to pursue either unlawful detainer

proceedings or a petition for a writ of mandate,” the

procedural due process inquiry turns on whether the

City has denied them a constitutionally adequate

remedy. Pursuant to the Los Angeles Municipal Code,

the RSO is intended to be enforced by way of an

unlawful detainer action. See L.A. Mun. Code § 151.01

(“In order to assure compliance with the provisions of

this chapter violations of any of the provisions of this

chapter may be raised as affirmative defenses in

unlawful detainer proceedings.”). As the Appellants

only in a “cursory” fashion. However, the district court

considered this claim on the merits, and the opening brief

highlights the City’s alleged failure to provide a hearing before

making a determination as to the tenant’s protected status.

Moreover, “[w]e may choose to review an issue notwithstanding

waiver,” among other circumstances, where the appellee’s brief

addresses the issue. Freedom from Religious Foundation, Inc. v.

Chino Valley Unified Sch. Dist. Bd., 896 F.3d 1132, 1152 n.22

(9th Cir. 2018). Such is the case here.

Appendix 6a

have not shown that they would be unable to

challenge the tenant’s protected status through an

unlawful detainer proceeding, we affirm the dismissal

of their procedural due process claim with prejudice.

AFFIRMED.

Appendix 7a

Filed Feb. 11, 2021

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 20-5515

-DMG (ADSx)

Date February 11, 2021

Title David Kagan, et al. v. City of Los Angeles,

et al.

Present: The Honorable DOLLY M. GEE,

UNITED STATES DISTRICT JUDGE

KANE TIEN

Deputy Clerk

Attorneys Present

for Plaintiff(s)

None Present

NOT REPORTED

Court Reporter

Attorneys Present

for Defendant(s)

None Present

Proceedings: IN CHAMBERS—ORDER RE

DEFENDANTS’ MOTION TO

DISMISS [16]

On June 22, 2020, Plaintiffs David Kagan, Judith

Kagan, Frank Revere, and Rachel K. Revere filed a

Complaint against Defendants the City of Los Angeles

and the City of Los Angeles Housing and Community

Investment Department (collectively, the “City”)

asserting two causes of action under 42 U.S.C. section

1983 for violations of (1) the Takings Clause of the

Fifth Amendment of the United States Constitution

and (2) the Due Process Clause of the Fourteenth

Amendment. [Doc. # l.] On August 12, 2020, the City

filed its motion to dismiss (“MTD”). [Doc. # 16.] The

motion has been fully briefed. [Doc. ## 22, 24.] Having

duly considered the parties’ written submissions, the

Court GRANTS the City’s MTD.

Appendix 8a

I.

FACTUAL BACKGROUND

Since 2015, Plaintiffs have owned a duplex located

in Los Angeles, California (“the Property”). Compl. at

¶ 1. The Property is subject to rent control under the

City’s Rent Stabilization Ordinance (“RSO”). Id.; see

also Defs.’ Request for Judicial Notice (“RJN”), Ex. A

(RSO) [Doc. # 18-1].1 The City passed the RSO to

address its “shortage of decent, safe and sanitary

housing in the City of Los Angeles resulting in a

critically low vacancy factor” and “to safeguard

tenants from excessive rent increases.” RSO at 7–8.2

The RSO provides that a landlord “may not recover

possession of a rental unit” if the tenant is classified

as having “protected tenant” status. The section

defines a “protected tenant” as any tenant in the unit

who has continuously resided there for over ten years

and is either at least 62 years old or is disabled or

handicapped, as defined by 42 U.S.C. section 423 or

California Health and Safety Code section 50072. Id.

at 81. Notwithstanding this provision, the RSO also

allows a landlord to withdraw a property from the

rental market when occupied by a tenant for one year

or more who is either at least 62 years old or disabled,

1 The Court GRANTS the City’s RJN as to the RSO. A municipal

ordinance is a proper subject of judicial notice because it is not

subject to reasonable dispute. Tallis, Inc. v. County of San Diego,

505 F.3d 935, 938 n. 1 (9th Cir. 2007). The Court DENIES as

moot the City’s RJN as to the other documents it requests, as

well as the documents contained in Plaintiffs’ RJN [Doc. # 23].

These documents would not affect the Court’s analysis, even if

they were considered.

2 All page references herein are to page numbers inserted in the

header of the document by the CM/ECF filing system.

Appendix 9a

so long as the landlord provides one year’s notice. Id.

at 68–69.

The Property is currently occupied by a tenant

(“Tenant”), who has resided there since June 2008. In

September 2019, Plaintiffs decided they wanted

Frank and Rachel Revere’s child, daughter-in-law,

and grandchildren to occupy the Property. On

September 23, 2019, Plaintiffs filed a Declaration of

Intent to Evict Tenant for Landlord Occupancy

(“Application”) with the Los Angeles Housing

Department. Compl. at ¶ 1. The Tenant filed

objections claiming his residence for more than ten

years and disability protected him from eviction. Id.

at ¶ 11. On October 28, 2019, the Housing Department

denied the Application, determining that the Tenant

has “protective status” as defined by the RSO. Id.

III.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure

12(b)(6), a party may seek dismissal for failure to state

a claim upon which relief can be granted. Fed. R. Civ.

P. 12(b)(6). To survive a Rule l2(b)(6) motion, a

pleading must articulate “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Although a

pleading need not contain “detailed factual

allegations,” it must contain “more than labels and

conclusions” or “a formulaic recitation of the elements

of a cause of action.” Id. at 555 (citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)). “A claim has facial

plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Appendix 10a

In evaluating the sufficiency of a complaint, courts

must accept all factual allegations as true. Id. (citing

Twombly, 550 U.S. at 555). Legal conclusions, in

contrast, are not entitled to the assumption of truth.

Id.

IV.

DISCUSSION

A. Physical Takings Claim Under the Fifth

Amendment

Plaintiffs’ first cause of action claims that the

City’s enforcement of the RSO, resulting in their

inability to evict the Tenant, effected a physical taking

in violation of the Takings Clause. Compl. at ¶¶ 1, 11–

12. Plaintiffs do not plead or argue that the RSO

provisions amount to a regulatory taking. See Opp. at

16.3 Instead, Plaintiffs assert that the challenged

provisions, as applied to their Property, constituted a

physical taking by transferring their right to

possession to a third party, effectively granting the

Tenant a life estate in the Property. Id. at 6.4

3 Plaintiffs’ failure to respond to the merits of the City’s argument

relating to the regulatory takings doctrine constitutes a

concession of that argument. Ramirez v. Ghilotti Bros. Inc., 941

F. Supp. 2d 1197, 1210 (N.D. Cal. 2013) (deeming failure to

oppose an argument as concession of the issue).

4 The parties spill considerable ink arguing whether the takings

claim is ripe under the doctrine of Williamson County Regional

Planning Commission v. Hamilton Bank, which states that “a

claim that the application of government regulations effects a

taking of a property interest is not ripe until the government

entity charged with implementing the regulations has reached a

final decision regarding the application of the regulations to the

property at issue.” 473 U.S. 172, 186 (1985), overruled on other

grounds by Knick v. Township of Scott, 139 S. Ct. 2162 (2019). In

the City’s MTD, it argues that the claim is not ripe under

Appendix 11a

The Takings Clause forbids government entities

from appropriating private property unless it is “for

public use” and the government provides “just

compensation.” See U.S. Const. amend. V; Brown v.

Legal Found. of Wash., 538 U.S. 216, 231–32 (2003).

When the government physically takes possession of

an interest in property for some public purpose, it has

a categorical duty to compensate the former owner. A

physical taking “is a direct government appropriation

or physical invasion of private property.” Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005). “The

government effects a physical taking only where it

requires the landowner to submit to the physical

occupation of his land.” Yee v. City of Escondido, 503

U.S. 519 (1992); see also Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 441 (1982)

(“[A] permanent physical occupation of property is a

taking.”).

Plaintiffs argue that the relevant RSO sections

“compel a landowner over objection to rent his

property” and provide that “the landowner refrain in

perpetuity from terminating a tenancy to obtain

possession.” Opp. at 13. But Plaintiffs are not

compelled to rent the Property against their will. They

acquired the Property knowing that the Tenant lived

there and knowing that it was subject to the RSO. See

Williamson County only “[t]o the extent Plaintiffs claim a

regulatory taking has occurred.” MTD at 20. After Plaintiffs

concede they are not asserting a regulatory taking in their

Opposition, the City then continues to argue for the Williamson

County rule in its Reply. Reply at 6–9. Williamson County plainly

relates to regulatory takings, and the City does not provide any

argument or authority for applying it to physical takings.

Accordingly, the Court will assume for the purpose of this MTD

that the physical takings claim is ripe.

Appendix 12a

Harmon v. Markus, 412 F. App’x 420, 422 (2d Cir.

2011) (landlords who purchased rent-controlled

property “acquiesced in its continued use as rental

housing”). And Plaintiffs have the option to withdraw

the Property from rental housing use, provided they

give the Tenant one year’s notice.

In Yee v. City of Escondido, the Supreme Court

held that a rent control ordinance did not require

landowners to submit to the physical occupation of

their property because they had “voluntarily rented

their land.” 503 U.S. at 528. Since the landowners

invited the tenants onto the property, the government

had not forced the tenants upon the owners. Id.

Moreover, the ordinance in Yee still allowed the

landlord to evict tenants, albeit with six- or 12months’ notice. Id. at 527–28. The situation is exactly

the same here. Even if Plaintiffs were required to rent

to the Tenant for the rest of his life, which they are

not, they are not required to lease the Property

permanently. See Troy Ltd. v. Renna, 727 F.2d 287,

301 (3d Cir. 1984) (senior-citizen and disability

tenancy protections that prevent eviction for as many

as 48 years do not amount to taking because “[i]t is

fanciful to imagine that these tenants will occupy

their units ‘permanently.’”).

Accordingly, the Court GRANTS the City’s

motion to dismiss Plaintiffs’ takings claim.

B. Due Process Claims Under the Fourteenth

Amendment

1. Substantive Due Process

Plaintiffs assert a violation of their substantive

due process rights based on the City’s alleged physical

taking of their property. Compl. at ¶ 19. “To state a

Appendix 13a

substantive due process claim, the plaintiff must show

as a threshold matter that a state actor deprived it of

a constitutionally protected life, liberty or property

interest.” Shanks v. Dressel, 540 F.3d 1082, 1087 (9th

Cir. 2008). The Ninth Circuit has noted that the Fifth

Amendment does not automatically preempt a

substantive due process claim that alleges a

defendant’s land use action lacked any substantial

relation to public health, safety, or general welfare.

Colony Cove Properties, LLC v. City of Carson, 640

F.3d 948, 960 (9th Cir. 2011). Accordingly, to maintain

a substantive due process claim, a plaintiff must

allege: (1) the government’s action was “arbitrary,

irrational, or lacking any reasonable justification in

the service of a legitimate government interest”; and

(2) the government’s actions deprived them of a

protected property interest. Id. at 962; see also

Halverson v. Skagit Cnty., 42 F.3d 1257, 1262 (9th Cir.

1994).

Plaintiffs do not offer any arbitrary or illegitimate

reasons behind the RSO or the denial of Plaintiffs’

eviction Application that would constitute “irrational”

or “conscience shocking” conduct. United States v.

Salerno, 481 U.S. 739, 746 (1987). In fact, Plaintiffs’

own allegations show the City enacted the RSO for the

public purpose of addressing a housing shortage.

Compl. at ¶ 15. The ordinance and the City’s

application of it were rationally related to the

legitimate government interest of protecting

vulnerable tenants during a housing shortage. See

Guggenheim v. City of Goleta, 638 F.3d 1111, 1123

(9th Cir. 2010) (holding that rent control ordinance

was rationally related to the legitimate government

purpose of addressing housing shortages and

protecting renters from abusively high rent).

Appendix 14a

Plaintiffs’ allegations are therefore insufficient to

state a substantive due process claim.

2. Procedural Due Process

A procedural due process claim is based on “an

expectation that the system is fair and has provided

an adequate forum for the aggrieved to air his

grievance.” Weinberg v. Whatcom County, 241 F.3d

746, 752 (9th Cir. 2001). To state a claim for violation

of procedural due process, a plaintiff must allege

(1) the existence of a constitutionally protected liberty

or property interest and (2) deprivation of that

interest by the government without due process. See

Bd. of Regents of State Coils. v. Roth, 408 U.S. 564,

569–70 (1972).

Even assuming Plaintiffs have been deprived of a

liberty or property interest, Plaintiffs have multiple

available post-deprivation remedies from which to

seek repossession of the Property or question the

validity of the City’s application of the RSO. While the

RSO provides substantive grounds upon which a

property owner may or may not evict a tenant, the

City’s denial of Plaintiffs’ Application for an eviction

declaration does not prohibit them from nonetheless

pursuing an unlawful detainer action. See Birkenfeld

v. City of Berkeley, 17 Cal. 3d 129, 151 (1976) (holding

that certificates of eviction are not required to initiate

unlawful detainer proceedings). ln this forum,

Plaintiffs could challenge the application or validity of

the Tenant’s defense based on his purported protected

status.

Plaintiffs can also challenge the validity of the

City’s decision through California Code of Civil

Procedure section 1094.5. In California, the remedy of

Appendix 15a

“administrative mandamus,” or writ of mandate, is

available to inquire into the validity of an

administrative agency’s quasi-judicial actions where

the agency has been called upon to make a factual

determination. Gong v. City of Fremont, 250 Cal. App.

2d 568, 572–73 (1967). Section 1094.5 provides that

administrative actions are subject to review only

when the issue involves “want or excess of

jurisdiction, whether there was a fair trial, and

whether there was prejudicial abuse of discretion.” Id.

(citing Cal. Civ. Proc. Code § 1094.5). Plaintiffs argue

that this is not a viable option because the City would

be more than likely to prevail on the sole issue of

abuse of discretion. Opp. at 14. Plaintiffs’ likelihood of

success in redressing their loss through available

state remedies, however, is immaterial. “[I]t is the

existence of these alternate remedies that bars a

plaintiff from pursuing a Section 1983 due process

claim based upon the deprivation of property.” Jordan

v. Diaz, No. CY 20-00574-MWF (JCx), 2020 WL

5167738, at *4 (C.D. Cal. Apr. 25, 2020) (emphasis

added).

Because California provides Plaintiffs with

adequate post-deprivation remedies, Plaintiffs’

procedural due process claim is not cognizable. The

Court GRANTS the City’s motion to dismiss

Plaintiffs’ due process claim.

*

*

*

Given that the Court has made the above

determinations as a matter of law, Plaintiffs’

pleadings “could not possibly be cured by the

allegation of other facts.’” Knappenberger v. City of

Phoenix, 566 F.3d 936, 942 (9th Cir. 2009) (quoting

Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)

Appendix 16a

(en banc)). The Court therefore declines to grant leave

to amend.

V.

CONCLUSION

In light of the foregoing, the Court GRANTS the

City’s MTD with prejudice.

IT IS SO ORDERED.

Appendix 17a

Los Angeles Municipal Code

SEC. 151.30. EVICTIONS FOR OWNER, FAMILY,

OR RESIDENT MANAGER OCCUPANCY.

(Added by Ord. No. 180,747, Eff. 8/1/09.)

Notwithstanding any provision of this Chapter to

the contrary, if a landlord seeks to recover possession

of a rental unit pursuant to the provisions of

Subdivision 8. of Subsection A. of Section 151.09 of

this Code, the following provisions shall apply:

A. Ownership Requirement. A landlord

may recover possession of a rental unit pursuant to

the provisions of Paragraph a of Subdivision 8. of

Subsection A. of Section 151.09 only if the landlord is

a natural person who possesses legal title to at least

25 percent of the property containing the rental unit,

or is a beneficiary with an interest of at least 25

percent in a trust that owns the property. A landlord

may recover possession of a rental unit pursuant to

the provisions of Paragraph b. of Subdivision 8. of

Subsection A. of Section 151.09 only if the landlord is

a natural person who possesses legal title to at least

50 percent of the property containing the rental unit,

or is a beneficiary with an interest of at least 50

percent in a trust that owns the property. A landlord

may recover possession of a rental unit pursuant to

the provisions of Subdivision 8. of Subsection A. of

Section 151.09 for use and occupancy by the landlord,

landlord's spouse, grandchild, child, parent, or

grandparent only once for that person in each rental

complex of the landlord.

B. Residency Requirements for Replacement Occupant. The landlord must in good faith

intend that the owner, eligible relative, or a resident

Appendix 18a

manager will occupy the rental unit within three

months after the existing tenant vacates the rental

unit, and that the owner, eligible relative, or a

resident manager will occupy the rental unit as a

primary residence for a period of two consecutive

years. Failure of the owner, eligible relative, or a

resident manager to occupy the rental unit within

three months after the existing tenant vacates the

unit, or failure of the owner, eligible relative, or a

resident manager to occupy the rental unit as a

primary residence for a period of two consecutive

years, may be evidence that the landlord acted in bad

faith in recovering possession of a rental unit

pursuant to the provisions of Subdivision 8. of

Subsection A. of Section 151.09. It will not be evidence

of bad faith if a landlord recovers possession of a

rental unit for use and occupancy by a resident

manager, and during the next two years replaces the

resident manager with a different resident manager.

C. Comparable Rental Unit. A landlord

may not recover possession of a rental unit pursuant

to the provisions of Subdivision 8. of Subsection A. of

Section 151.09 if there is a comparable rental unit in

the building that is vacant, except that where a

building has an existing resident manager, the

landlord may evict the existing resident manager in

order to replace the existing resident manager with a

new manager. (Amended by Ord. No. 184,822, Eff.

4/30/17.)

D. Tenants Eligible for Termination of

Tenancy.

1. Protected tenants. A landlord may

not recover possession of a rental unit pursuant to the

Appendix 19a

provisions of Subdivision 8. of Subsection A. of Section

151.09 if:

(a) any tenant in the rental unit has

continuously resided in the rental unit for at least ten

years, and is either: (i) 62 years of age or older; or (ii)

disabled as defined in Title 42 United States Code

Section 423 or handicapped as defined in Section

50072 of the California Health and Safety Code; or

(b) any tenant in the rental unit is

terminally ill as certified by a treating physician

licensed to practice in the State of California.

2. Application to most recent tenant. A

landlord may recover possession of a rental unit

pursuant to the provisions of Subdivision 8. of

Subsection A. of Section 151.09 only from a tenant

who is the most recent tenant, not protected from

termination of tenancy pursuant to the provisions of

Subdivision (1) of this Subsection, to occupy a rental

unit in the building with the same number of

bedrooms needed by the landlord, the landlord's

eligible relative or the resident manager, except that

a landlord may recover possession from a different

tenant if a different unit is required because of

medical necessity, as certified by a treating physician

licensed to practice in the State of California.

E. Relocation Fees. A landlord who

terminates a tenancy pursuant to the provisions of

Subdivision 8. of Subsection A. of Section 151.09 shall

pay a relocation fee pursuant to the provisions of

Subsection G. of Section 151.09, except in the

following circumstance:

If the termination of tenancy is based on the

grounds set forth in Paragraphs (a) or (b) of

Appendix 20a

Subdivision 8. of Subsection A. of Section 151.09, and

all of the following conditions exist: (1) the building

containing the rental unit contains four or fewer

rental units; (2) within the previous three years the

landlord has not paid the fee authorized by this

Subsection to any tenant who resided in the building;

(3) the landlord owns, in the City of Los Angeles, no

more than four units of residential property and a

single-family home on a separate lot; and (4) any

eligible relative for whom the landlord is recovering

possession of the rental unit does not own any

residential property in the City of Los Angeles; then

the landlord shall pay a relocation fee of $14,000 to

qualified tenants and a fee of $7,000 to all other

tenants. If more than one fee applies to a rental unit,

the landlord shall pay the highest of the applicable

fees. For the year beginning July 1, 2009, and all

subsequent years, the fee amounts shall be adjusted

on an annual basis pursuant to the formula set forth

in Section 151.06 D. of this Code. The adjusted

amount shall be rounded to the nearest $50

increment. The fee payment shall be made in

accordance with the provisions of Subdivisions 1., 2.,

and 3. of Subsection G. of Section 151.09, and the

provisions of Subdivision 4. of Subsection G. of Section

151.09 apply to determine whether a relocation fee is

owed.

F. Post-Tenancy Termination Filing

Requirements.

(1) Three month filing requirement.

Within three months of a tenant’s vacation of a rental

unit, a landlord who recovered possession of a rental

unit pursuant to the provisions of Subdivision 8. of

Subsection A. of Section 151.09 shall file with the

Appendix 21a

Department a statement under penalty of perjury that

the rental unit is occupied by the landlord, eligible

relative, or resident manager for whom the landlord

terminated the tenancy, or an explanation why the

rental unit is not occupied by the landlord, eligible

relative, or resident manager for whom the landlord

terminated the tenancy.

(2) Annual filing requirements. A

landlord who recovers possession of a rental unit

pursuant to the provisions of Subdivision 8. of

Subsection A. of Section 151.09 must, within thirty

days preceding the first and second year anniversary

of the tenant’s vacation of the rental unit, file with the

Department a statement under penalty of perjury

regarding the continued occupancy of the rental unit

by the landlord, eligible relative, or a resident

manager. The statement must confirm the continued

occupancy by the landlord, eligible relative, or a

resident manager, or if the occupancy did not

continue, the statement must explain why the rental

unit is not occupied by such person.

G. Tenant Re-Rental Rights. A landlord

who offers a rental unit that was the subject of a

tenancy termination pursuant to the provisions of

Subdivision 8. of Subsection A. of Section 151.09 for

rent or lease within two years after the tenant vacated

the rental unit shall first offer to rent the rental unit

to the displaced tenant or tenants, provided that the

tenant or tenants advised the landlord in writing

within 30 days of displacement of the tenant’s desire

to consider an offer to renew the tenancy and provided

the landlord and Department with an address to

which to direct the offer. The tenant or tenants may

advise the landlord and Department any time during

Appendix 22a

the two year period of eligibility of a change of address

to which to direct the offer.

A landlord who offers to rent or lease a rental unit

to a previously displaced tenant pursuant to the

provisions of this Subsection shall deposit the offer in

the United States mail, by registered or certified mail

with postage prepaid, addressed to the displaced

tenant or tenants at the address furnished to the

landlord as provided in this Subsection, and shall

describe the terms of the offer. The displaced tenant

or tenants shall have 30 days from the deposit of the

offer in the mail to accept the offer by personal

delivery of that acceptance or by deposit of the

acceptance in the United States mail by registered or

certified mail with postage prepaid.

H. Notice of Re-Rental. If a landlord desires

to offer for rent or lease a rental unit that was the

subject of a tenancy termination pursuant to the

provisions of Subdivision 8. of Subsection A. of Section

151.09, the landlord must file with the Department a

Notice of Intention to Re-Rent Rental Unit on a form

prescribed by the Department. The form must be filed

before renting or leasing the rental unit.

I. Penalties. In addition to all other

penalties authorized by law, the following penalties

apply for violations of the provisions of Subdivision 8.

of Subsection A. of Section 151.09, and of this Section:

(1) If a landlord acts in bad faith in

recovering possession of a rental unit pursuant to the

provisions of Subdivision 8. of Subsection A. of Section

151.09, the landlord shall be liable to any tenant who

was displaced from the property for three times the

amount of actual damages, exemplary damages,

Appendix 23a

equitable relief, and attorneys’ fees. The City may

institute a civil proceeding for equitable relief and

exemplary damages for displacement of tenants.

Nothing in this paragraph precludes a tenant or the

City from pursuing any other remedy available under

the law.

(2) A landlord who fails to file a statement

under penalty of perjury as required by the provisions

of Subsection F. of this Section, or a notice as required

by the provisions of Subsection H. of this Section, shall

pay a fine in the amount of $250 per day for each day

that the statement or notice is delinquent.

Appendix 24a

Filed June 22, 2020

*

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*

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*

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DAVID KAGAN,

JUDITH KAGAN,

FRANK REVERE, and

RACHEL K. REVERE,

Plaintiffs,

v.

CITY OF LOS

ANGELES, AND CITY

OF LOS ANGELES

HOUSING +

COMMUNITY

INVESTMENT

DEPARTMENT,

Defendants.

CASE NO: 2:20-cv05515-DMG-ADS

COMPLAINT FOR

VIOLATIONS OF

THE CIVIL RIGHTS

ACT, 42 U.S.C.

SECTION 1983 (DE

FACTO PHYSICAL

TAKINGS WITHOUT

COMPENSATION

AND DENIAL OF

DUE PROCESS)

AND CLAIM FOR

ATTORNEY’S FEES

UNDER 42 U.S.C.

1988(b)

Demand for Jury

Plaintiffs David Kagan, Judith Kagan, Frank

Revere and Rachel K. Revere (Plaintiffs) bring the

following Complaint against Defendants, City of Los

Angeles (City), and the City of Los Angeles Housing +

Community Investment Department (Housing

Department) (collectively City), and allege as follows:

INTRODUCTION

1. Plaintiffs are the fee owners of improved real

property consisting of a duplex which includes 103

Appendix 25a

North Orange Drive, Los Angeles, California 90036

(the Property). The Property is rented to Hamid

Mossanen (Tenant), a single man, born October 23,

1958, who first occupied the Property during June,

2008. The Property is subject to rent control under the

Los Angeles Municipal Code (LAMC). During

September 2019, Plaintiffs determined they wished

the Property to be occupied by a child, daughter-inlaw, and two grandchildren of Frank Revere and

Rachel K. Revere and on September 23, 2019, filed the

required Declaration to Evict with the Housing

Department as required by the LAMC (Application).

A true and correct copy of the Application is attached

hereto marked “Exhibit A” and is incorporated herein

by reference. On October 28, 2019, the Housing

Department, without a hearing and without any

opportunity for the Plaintiffs to be heard, and solely

based on that Tenant’s representations, oral and

written, declared in writing (the “Determination”)

that the Application filed by the Plaintiffs did not

meet the requirements of the LAMC and as such the

Tenant has protective status which prohibits Plaintiffs

from seeking to obtain possession of the Property

owned by them in fee. A true and correct copy of the

Determination is attached hereto as “Exhibit B” and

is incorporated herein by reference. City has thereby

granted the Tenant the permanent physical

occupation of the Property in perpetuity without

compensation of any kind to Plaintiffs. This is a

physical occupation case where the Defendant has

physically intruded upon Plaintiffs’ private property

by granting authority to another person to do so.

Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 421; 102 S.Ct. 3164, 3166 (1982). By this

suit, Plaintiffs seek to recover just compensation for

Appendix 26a

the de facto physical taking of possession of the

Property in perpetuity; for the denial of their Fifth

and Fourteenth Amendment rights, and for attorney’s

fees.

PARTIES

2. Plaintiffs are individuals residing in the City

of Los Angeles, County of Los Angeles, in the Central

District of California, and are the owners in fee of the

Property which is located in said City and County also

designated as Los Angeles County Assessor’s Parcel

Number 5513-004-015.

3. Defendant, City is a political sub-division of

the State of California organized and existing in

accordance with its charter and the laws of the State

of California as a Municipal Corporation which has

adopted provisions for rent control as appears in the

LAMC.

4. Defendant, Housing Department, is a local

public agency with Regulatory authority over rental

properties in the City of Los Angeles further to

provisions of the LAMC.

JURISDICTION AND VENUE

5. This case arises under the Fifth and

Fourteenth Amendments to the United States

Constitution and 42 U.S.C. sections 1983 and 1988.

This court has subject matter jurisdiction pursuant to

28 U.S.C. 1331 and 1343.

6. This court is the appropriate venue for this

case pursuant to 28 U.S.C. sections 1391(b)(2).

Plaintiffs’ property is located in this judicial district,

the actions complained of took place in this judicial

district, documents and records relevant to the

Appendix 27a

allegations are maintained in this judicial district,

and the Defendants are present and conduct their

affairs in this Judicial District.

7. The Plaintiffs’ claim is ripe for the reason the

LAMC provides no procedure nor opportunity by

which Plaintiffs may seek a review, reversal or a

variance from the Determination of the Housing

Department of October 28, 2019. Additionally,

Plaintiffs are not now obligated to seek compensation

through the procedures established by the State of

California for seeking just compensation for the

inverse condemnation of the Property and now may

proceed to assert their claims in this Court. Knick v.

Township of Scott, 139 S.Ct. 2162, 2167 (2019)

The elements of the Plaintiffs’ claims for relief are

(1) Did the Defendants actions amount to a taking?;

(2) Did the taking advance a legitimate governmental

interest?; and, (3)Was just compensation paid? Hall v.

City of Santa Barbara, 797 F.2d 1493, 1497 (9th Cir.

1986).

8. Standing

Plaintiffs have established the constitutional

minimum for standing in that the Plaintiffs have

alleged (1) injury in fact; (2) traceable to the conduct

of the City; and, (3) the likelihood of being redressed

by a favorable Determination. Lujan v. Defenders of

Wildlife, 504 U.S. 555; 112 S. Ct. 2130 (1992);

Washington Environmental Council v. Bellon, 732

F.3d 1131, 1139 (9th Cir. 2013).

Appendix 28a

STATEMENT OF FACTS

9. The Property

The Property which is owned by the Plaintiffs

consists of an upstairs duplex unit comprising 2,400

square feet divided into living room, dining room,

three bedrooms, two baths, garage, storeroom, one

parking space, and a private yard area all of which is

being occupied solely by an unemployed single man

who currently pays a monthly rent of $4,545. The

Property is legally described as Lot 213 of Tract No.

8498, in the City of Los Angeles, County of Los

Angeles, State of California, as per Map recorded in

Book 95, Pages 53 to 55 inclusive of Maps, in the Office

of the County Recorder of said County. Except

therefrom all oil, gas, minerals and other hydrocarbon

substances, lying below a depth of 500 feet, without

the right of surface entry. Plaintiffs purchased the

Property on June 23, 2015 for the sum of

$2,163,320.00.

10. The Ordinance

Effective September 16, 1990, the City adopted a

Rent Stabilization Ordinance based on the following

Declaration of Purpose:

“There is a shortage of decent, safe and

sanitary housing in the City of Los Angeles

resulting in a critically low vacancy factor.

Tenants displaced as a result of their

inability to pay increased rents must relocate

but as a result of such housing shortage are

unable to find decent, safe and sanitary

housing at affordable rent levels. Aware of the

difficulty in finding decent housing, some

tenants attempt to pay requested rent

Appendix 29a

increases, but as a consequence must expend

less on other necessities of life. This situation

has had a detrimental effect on substantial

numbers of renters in the City, especially

creating hardships on senior citizens, persons

on fixed incomes and low and moderate

income households. This problem reached

crisis level in the summer of 1978 following

the passage of Proposition 13. At that time,

the Council of the City of Los Angeles

conducted hearings and caused studies to be

made on the feasibility and desirability of

various measures designed to address the

problems created by the housing shortage. In

August, 1978, pending development and

adoption of measures designed to alleviate

the City’s housing crisis, Council adopted

Ordinance No. 151,415 which temporarily

rolled back recently imposed rent increases,

and prohibited most rent increases on

residential rental properties for six months.

Ordinance No. 151,415 expires on April 30,

1979. This ordinance has successfully

reduced the rate of rent increases in the City,

along with the concomitant hardships and

displacements. However, a housing shortage

still exists within the City of Los Angeles and

total deregulation of rents at this time would

immediately lead to widespread exorbitant

rent increases, and recurrence of the crisis,

problems and hardships which existed prior

to the adoption of the moratorium measure.

Therefore, it is necessary and reasonable to

regulate rents so as to safeguard tenants from

excessive rent increases, while at the same

Appendix 30a

time providing landlords with just and

reasonable returns from their rental units. In

order to assure compliance with the

provisions of this chapter violations of any of

the provisions of this chapter may be raised

as affirmative defenses in unlawful detainer

proceedings. (Amended by Ord. No. 166,130,

Eff. 9/16/90.)”

11. The Takings

On or about September 23, 2019, Plaintiffs, Frank

Revere and Rachel K. Revere, with the consent of the

remaining Plaintiffs and in compliance with the

Ordinance, filed a Declaration of Intent to Evict

Tenant for Landlord Occupancy (the Application –

Exhibit A). The Tenant who had resided on the

Property for more than ten years as of this time and

who was then under 62 years of age, filed objections

claiming residence for more than ten years and

disability. On October 28, 2019, City advised counsel

for Plaintiffs in writing (the Determination Exhibit B)

that the Application was denied as the Tenant has

protective status as defined by the Ordinance, section

151.30.D.1. Said section provides:

“Tenants

Tenancy.

Eligible

for

Termination

of

1. Protected tenants. A landlord may not

recover possession of a rental unit pursuant

to the provisions of Subdivision 8. of

Subsection A. of Section 151.09 if:

(a) any tenant in the rental unit has

continuously resided in the rental unit for at

least ten years, and is either: (i) 62 years of

age or older; or (ii) disabled as defined in

Appendix 31a

Title 42 United States Code Section 423 or

handicapped as defined in Section 50072 of

the California Health and Safety Code; or

(b) any tenant in the rental unit is

terminally ill as certified by a treating

physician licensed to practice in the State of

California.”

12. The Determination was made without a

hearing being conducted, without any notice to the

Plaintiffs, without giving Plaintiffs an opportunity to

be heard and was based on the existence of a ten year

tenancy and a claim of disability which facts evidence

the City’s intent to take the Property without regard

to Plaintiffs wishes or objections. As a result, there

has been a permanent physical occupation resulting

in a taking of the Plaintiffs’ Property for a public

purpose without compensation in violation of the

Takings Clause set forth in the Fifth Amendment to

the U.S. Constitution.

13. The Claim

On January 8, 2020, Plaintiffs, further to

California Government Code section 915 et seq.,

electronically presented a claim (Claim) to City

demanding compensation for the taking of the

Property. A true and correct copy of the Claim is

attached hereto as Exhibit C and is incorporated

herein by reference. On January 13, 2010, the City

electronically acknowledged receipt of the Claim and

advised it had assigned claim number C20-03548 to it.

The Claim has not acted timely and is deemed

rejected.

Appendix 32a

FIRST CLAIM FOR RELIEF

(VIOLATION OF THE TAKINGS CLAUSE OF THE

FIFTH AMENDMENT TO THE UNITED STATES

CONSTITUTION/42 U.S.C. §1983)

(BY PLAINTIFFS AGAINST ALL DEFENDANTS)

14. Plaintiffs incorporate by reference each and

every allegation contained in the preceding

paragraphs of this Complaint as though fully set forth

herein.

15. By awarding exclusive possession to Tenant

for his life if he so wishes without deference to

Plaintiffs’ fee title and right to possession, City has

taken Plaintiffs’ Property for the public purpose of

addressing the housing shortage without paying

Plaintiffs any compensation. In particular, as the U.S.

Supreme Court explained in a June 2019 opinion “a

taking without compensation violates the selfexecuting Fifth Amendment at the time of the taking,”

and thus the constitutional violation takes place when

property is taken without compensation, not after the

exhaustion of state court remedies. (Knick v.

Township of Scott, 139 S. Ct. 2162, 2172 (2019)) The

Takings Clause Provisions of the Fifth Amendment

state:

“No person shall be deprived of property

without due process of law nor shall private

property be taken for public use, without just

compensation.” U.S. Constitution, Fifth

Amendment.

16. 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

Appendix 33a

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)).

17. By virtue of the takings alleged herein,

Plaintiffs have been damaged in an amount not yet

ascertained, but in excess of $1,250,000. In addition,

Plaintiffs have incurred and will continue to incur

attorney’s fees, appraisal, and other expert fees for the

prosecution of this action.

SECOND CLAIM FOR RELIEF

(VIOLATION OF THE DUE PROCESS CLAUSE

OF THE FOURTEENTH AMENDMENT TO THE

UNITED STATES

CONSTITUTION/42 U.S.C. §1983)

(BY PLAINTIFFS AGAINST ALL DEFENDANTS)

18. Plaintiffs incorporate by reference each and

every allegation contained in the preceding

paragraphs of this Complaint as though fully set forth

herein.

19. The enforcement of the Ordinance and the

rendering of the Determination violated Plaintiffs

substantive due process rights secured by the

Fourteenth Amendment to the U.S. Constitution.

Under the Due Process Clause of the Fourteenth

Amendment, no State shall “deprive any person of life,

liberty, or property without due process of law.”

20. As Plaintiffs were expressly denied a

constitutionally

adequate

hearing

on

their

Application to obtain possession of the Property for

family purposes, they have been unjustifiably

prevented from the use and occupation of the Property

Appendix 34a

without the required due process in violation of the

Fourteenth Amendment of the United States

Constitution.

REQUESTED RELIEF

WHEREFORE, Plaintiffs, pray for judgment

against the Defendants, and each of them, as follows:

1. For a determination that the actions of the

City have resulted in Civil Rights Act violations in

that the City has de facto physically taken Plaintiffs’

right to possession of the Property without

compensation;

2. For compensation and damages against City in

an amount according to proof, with interest on that

amount at the appropriate legal rate from October 28,

2019;

3. For costs, including but not limited to

reasonable attorney’s fees incurred in this action

pursuant to 42 U.S.C. §1988 and other applicable law;

and,

4. For any and all other relief as the Court deems

just and proper.

DATED: June 22, 2020

REVERE & WALLACE

/S/___________________

Frank Revere

Attorney for Plaintiffs

Appendix 35a

DEMAND FOR JURY TRIAL

Pursuant to Rule 38 of the Federal Rules of Civil

Procedure, Plaintiffs demand a jury trial in this action

on all issues so triable.

DATED: June 22, 2020

REVERE & WALLACE

/S/___________________

Frank Revere

Attorney for Plaintiffs