Petition for Writ of Certiorari — San Diego Family Housing, LLC, a California Limited Liability Corporation, et al., Petitioners v. Lena Childs, et al.

Supreme Court briefJan 6, 2026

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APPENDIX

TABLE OF APPENDICES

Page

APPENDIX

APPENDIX A — OPINION OF THE

UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED AUGUST 28,2025 ............................... la

APPENDIX B — ORDER OF THE

UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED OCTOBER 8,2025.............................. 25a

APPENDIX C — ORDER OF THE

UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF CALIFORNIA,

FILED FEBRUARY 1, 2024 .......................... 27a

APPENDIX D — RELEVANT STATUTORY

PROVISION.................................................... 58a

APPENDIX E — DECLARATION

OF PHILIP RIZZO OF THE UNITED

STATES DISTRICT COURT, SOUTHERN

DISTRICT OF CALIFORNIA,

FILED OCTOBER 26,2023............................ 61a

APPENDIX F — NAVY AND MARINE CORPS

FACTS ABOUT HOME MOLD TESTING,

FILED OCTOBER 26,2023............................ 77a

Table ofAppendices

Page

APPENDIX G — LETTER OF THE

DEPARTMENT OF THE NAVY

HOUSING PRIVATION PARTNERS,

FILED OCTOBER 26,2023............................. 85a

APPENDIX H — SCOTT D. FORREST LETTER

TO THE DEPARTMENT OF THE NAVY,

FILED OCTOBER 26,2023............................. 90a

APPENDIX I — LETTER OF THE

DEPARTMENT OF THE NAVY,

FILED OCTOBER 26,2023............................. 94a

APPENDIX J — SCOTT D. FORREST AND

CHARLES A. WILLIAMS LETTERS TO

THE DEPARTMENT OF THE NAVY,

FILED OCTOBER 26,2023........................... 100a

APPENDIX K — PLAINTIFF’S FIRST

AMENDED COMPLAINT FOR DAMAGES

AND JURY TRIAL DEMAND OF THE

SUPERIOR COURT OF CALIFORNIA FOR

THE COUNTY OF SAN DIEGO - CENTRAL

DIVISION, FILED DECEMBER 5,2019...... 116a

SEALED APPENDIX

APPENDIXL—EXHIBITS: THIRD AMENDED

AND RESTATED LIMITED LIABILITY

COMPANY OPERATING AGREEMENT

OF SAN DIEGO FAMILY HOUSING, LLC,

DATED FEBRUARY 1,2010.................. S. App. 1

Table ofAppendices

Page

APPENDIX M — EXHIBIT C: THIRD

AMENDED AND RESTATED REAL

ESTATE GROUND LEASE, UNITED

STATES OF AMERICA, DEPARTMENT OF

THE NAVY, AS LESSOR AND SAN DIEGO

FAMILY HOUSING, LLC, AS LESSEE,

DATED MARCH 10,2017................... S. App. Ill

APPENDIX N — EXHIBIT D: SECOND

AMENDED AND RESTATED REAL

ESTATE GROUND LEASE, UNITED

STATES OF AMERICA, DEPARTMENT OF

THE NAVY, AS LESSOR AND SAN DIEGO

FAMILY HOUSING, LLC, AS LESSEE,

DATED OCTOBER 1,2007 ............... S. App. 196

APPENDIX 0 — EXHIBIT E: THIRD

AMENDED AND RESTATED

PROPERTY MANAGEMENT

AGREEMENT................................... S. App. 272

APPENDIX P — EXHIBIT F: WATER

INTRUSION/MOLD OPERATIONS

AND MAINTENANCE MANAGEMENT

SYSTEM............................................ S. App. 360

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT,

FILED AUGUST 28, 2025

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-1256

LENA CHILDS, AN INDIVIDUAL;

DONALD CHILDS, AN INDIVIDUAL;

T. CHILDS, A MINOR BY AND THROUGH HER

GUARDIAN AD LITEM, LENA CHILDS; A.

CHILDS, A MINOR BY AND THROUGH HER

GUARDIAN AD LITEM, LENA CHILDS,

Plaintiffs-Appellees,

SAN DIEGO FAMILY HOUSING, LLC,

A CALIFORNIA LIMITED LIABILITY

CORPORATION; LINCOLN MILITARY

PROPERTY MANAGEMENT LP,

A DELAWARE LIMITED PARTNERSHIP,

Defendants-Appellants,

and

INDEPTH CORPORATION,

A CALIFORNIA CORPORATION,

Defendant-Appellee.

Appendix A

Appeal from the United States District Court

for the Southern District of California

Jeffrey T. Miller, District Judge, Presiding

Argued and Submitted March 4, 2025

Pasadena, California

Filed August 28, 2025

Before: Mary H. Murguia, Chief Judge, and Gabriel P.

Sanchez and Holly A. Thomas, Circuit Judges.

Opinion by Judge Sanchez

OPINION

SANCHEZ, Circuit Judge:

Plaintiffs Donald and Lena Childs rented military

housing within the Naval Amphibious Base Coronado.

During their lease, the Childs dealt with water-intrusion

and mold contamination issues that allegedly damaged

their personal property and impacted their health.

According to Plaintiffs, Defendants San Diego Family

Housing, a public-private venture created by federal

statute, and Lincoln Military Property Management,

the property manager, were aware of these issues and

did not adequately remediate the problem. Plaintiffs filed

the instant action in state court asserting negligence and

other state law claims. Defendants removed the action

to federal district court on the basis of federal enclave,

federal agency, and federal officer jurisdiction. After

Appendix A

assessing each of these grounds for removal, the district

court concluded that it lacked jurisdiction over the action

and remanded to state court. We conclude that no basis

for federal jurisdiction applies and affirm.

Defendant San Diego Family Housing (“SDFH”) is

a public-private venture between the Navy and Lincoln/

Clark San Diego, LLC under the Military Housing

Privatization Initiative (“MHPI”). See 10 U.S.C. §§ 28712885. SDFH contracted with Lincoln Military Property

Management (“Lincoln”) to provide property management

services to the Silver Strand I housing community, which

includes military housing on Naval Amphibious Base

Coronado (“NAB Coronado”). In 2016, Plaintiffs Donald

and Lena Childs, with their minor children, leased a home

from SDFH at 1333 Saipan Road, Coronado, California

(“the Saipan Property”).

Soon after Plaintiffs moved into their home, the

property began to suffer from repeated water-intrusion

and related mold contamination. According to Plaintiffs,

these problems caused damage to their personal property

and eventually impacted the family’s health, causing

fatigue, shortness of breath, chronic headaches, and other

symptoms. After reporting these issues to Defendants,

Lincoln sent InDepth, a mold remediation company, to

inspect the property. InDepth discovered visible mold in

multiple areas of the home and allegedly told Plaintiffs

Appendix A

that there “[was] no reason to run any tests” because the

mold was visible. InDepth informed Lincoln of its findings,

and Lincoln provided temporary relocation assistance to

the Childs while InDepth performed remediation services.

After Plaintiffs were told that the remediation

service was successfully completed, Plaintiffs requested

documentation verifying that the mold had been

addressed, which Lincoln allegedly refused to provide.

Upon their return to the property, Plaintiffs engaged

their own mold testing service provider who ran tests that

indicated heightened levels of hazardous mold. Plaintiffs

told Lincoln and InDepth about the test results and allege

that Defendants dismissed their concerns and insisted

that the home was habitable. Plaintiffs refused to remain

at the property, and, after rejecting alternative housing

in the same community, Defendants immediately ceased

paying the Childs’ relocation costs. Defendants allegedly

refused to acknowledge the presence of mold and took no

further steps to properly remediate the property.

In 2019, Plaintiffs brought suit in state court against

SDFH, Lincoln, and InDepth, asserting claims for

negligence, private nuisance, breach of contract, breach

of the implied warranty of habitability, breach of the

implied covenant of peaceful and quiet enjoyment, and

constructive eviction. SDFH and Lincoln removed the

action to federal court on the basis of federal enclave,

federal officer, and federal agency jurisdiction under 28

U.S.C. § 1331 and 28 U.S.C. § 1442(a)(1). Upon removal,

Appendix A

SDFH and Lincoln moved to dismiss the action under a

claim of derivative sovereign immunity pursuant to the

Yearsley doctrine. See Yearsley v. W.A. Ross Constr. Co.,

309 U.S. 18,60 S. Ct. 413,84 L. Ed. 554 (1940). The district

court denied the motion, and Defendants appealed. We

held that the district court’s order rejecting dismissal

was not an immediately appealable collateral order and

dismissed the appeal. See Childs v. San Diego Fam. Hous.

LLC, 22 F.4th 1092,1099 (9th Cir. 2022).

Following remand, SDFH and Lincoln moved for

summary judgment on the grounds that Yearsley provided

them derivative sovereign immunity and that the legal

effect of federal enclave jurisdiction precluded most of

Plaintiffs’ state law claims.1 The United States then filed

a Statement of Interest before the district court asserting

that (1) Yearsley did not apply to Defendants, (2) the

Saipan Property was not within a federal enclave, and

(3) under this court’s intervening precedent in Lake v.

Ohana Military Communities, LLC, 14 F.4th 993 (9th Cir.

2021), the district court lacked federal officer or agency

jurisdiction.

The district court ordered supplemental briefing and

eventually rejected all of Defendants’ proffered grounds

for federal jurisdiction. Specifically, the district court

found that Defendants failed to establish that the Saipan

Property was within a federal enclave because there was no

1. SDFH and Lincoln also challenged Plaintiffs’ settlement

with InDepth. The district court did not address the propriety of

that settlement in its remand order, and Defendants do not seek

review of this issue on appeal.

Appendix A

evidence that the United States had retained or assented

to exclusive federal jurisdiction over the property. Next,

the district court concluded that Defendants failed to

show the requisite causal nexus between the challenged

actions and the federal government’s involvement in

Defendants’ housing management to establish federal

officer jurisdiction under 28 U.S.C. § 1442(a)(1). Finally,

the district court concluded that Defendants were unable

to establish federal agency jurisdiction under the sixfactor test of In re Hoag Ranches, 846 F.2d 1225,1227-28

(9th Cir. 1988). The district court remanded the case to

state court.2 Defendants timely appealed.

Before reaching the merits of these claims, we must

first assess our appellate jurisdiction to review the district

court’s remand order. Federal courts of appeals generally

lack jurisdiction to review a district court’s remand

order based on lack of subject matter jurisdiction. See

28 U.S.C. § 1447(d) (“An order remanding a case to the

State court from which it was removed is not reviewable

on appeal or otherwise,” subject to certain exceptions);

2. In its remand order, the district court also ruled on

Defendants’ evidentiary objections, sustaining their objection

to an unauthenticated parcel map of NAB Coronado, thereby

declining to take judicial notice of the parcel map. The district

court also sustained, in part, Defendants’ objections to the

declaration of a senior land surveyor, Lonie Cyr, determining that

legal conclusions as to whether the federal government exercises

exclusive jurisdiction over the Saipan Property were improper

witness testimony.

Appendix A

see also Yakama Indian Nation v. State of Wash. Dept,

of Revenue, 176 F.3d 1241,1248 (9th Cir. 1999) (“Remand

orders based on a defect in removal procedure or lack of

subject matter jurisdiction are immune from review even

if the district court’s order is erroneous.”). Nonetheless,

§ 1447(d) provides for two exceptions to this bar. Under the

statute, a remand order is reviewable for actions initially

removed pursuant to the federal officer removal statute

codified at § 1442. See 28 U.S.C. § 1447(d) (“[A]n order

remanding a case to the State court from which it was

removed pursuant to section 1442 or 1443 of this title shall

be reviewable by appeal or otherwise”). In their notice

of removal, SDFH and Lincoln asserted federal enclave

jurisdiction under § 1331 as well as federal officer and

federal agency jurisdiction under § 1442(a)(1). Because one

of the asserted grounds for removal was § 1442, we have

jurisdiction to review the remand order in its entirety. Id.

§ 1447(d); see also BP P.L.C. v. Mayor and City Council

of Baltimore, 593 U.S. 230, 238, 141 S. Ct. 1532, 209 L.

Ed. 2d 631 (2021) (explaining that the scope of appellate

jurisdiction extends to the “whole of [the district court’s]

order” when a defendant cites § 1442 as a ground for

removal).

III.

We review de novo the district court’s decision to

remand a removed case and its determination that it lacks

subject matter jurisdiction. Lively v. Wild OatsMkts., Inc.

456 F.3d 933, 938 (9th Cir. 2006). The defendant bears

the burden of proving that the requirements for removal

jurisdiction have been met. Leite v. Crane Co., 749 F.3d

Appendix A

1117, 1122 (9th Cir. 2014). On appeal, Defendants renew

their contentions that subject matter jurisdiction exists

under (1) 28 U.S.C. § 1331 because the Saipan Property

is located within a federal enclave, (2) 28 U.S.C. § 1442

(federal officer removal statute) because SDFH and

Lincoln operated under the Navy’s oversight and control

in dealing with the Childs’ complaints, and (3) 28 U.S.C.

§ 1442 because SDFH qualifies as a federal agency. We

consider each of these arguments in turn.

Federal enclave jurisdiction is dependent on the

federal government’s exercise of exclusive legislative

jurisdiction. See Lake, 14 F.4th at 1003-04; Paul v. United

States, 371 U.S. 245,263-64,83 S. Ct. 426,9 L. Ed. 2d 292

(1963); United States v. Jenkins, 734 F.2d 1322,1325-26

(9th Cir. 1983). The Enclave Clause of the Constitution

authorizes Congress to:

[E]xercise exclusive Legislation in all Cases

whatsoever, over such District ... as may,

by Cession of particular States, and the

Acceptance of Congress, become the Seat of

the Government of the United States, and

to exercise like Authority over all Places

purchased by the Consent of the Legislature

of the State in which the Same shall be, for the

Erection of Forts, Magazines, Arsenals, dock

yards, and other needful Buildings.

U.S. Const, art. I, § 8, cl. 17. Beyond the Enclave Clause’s

specified method of establishing exclusive federal

Appendix A

jurisdiction through the purchase of land with a state’s

consent, the Supreme Court has also recognized two other

methods by which the federal government can acquire

exclusive jurisdiction over land. First, Congress may

condition the admission of a state to the Union on a cession

of jurisdiction of land within that state. Fort Leavenworth

R.R. Co. v. Lowe, 114 U.S. 525,526-27,5 S. Ct. 995,29 L.

Ed. 264 (1885). And second, states themselves may cede

legislative jurisdiction over land within their borders to

the federal government. Id. at 540-42.

Defendants’ arguments for enclave jurisdiction over

the Saipan Property do not involve a straightforward

application of any of these methods. Instead, Defendants

rely on an intricate web of state and federal statutes to

support their theory. Therefore, to determine whether

federal enclave jurisdiction exists over the Saipan

Property requires a brief historical detour.

In 1897, California passed a law ceding “to the United

States of America exclusive jurisdiction over all lands

within this State now held, occupied, or reserved by the

Government of the United States for military purposes

or defense, or which may hereafter be ceded or conveyed

to said United States for such purposes.” 1897 Cal.

Stat. ch. 56, § I.3 In 1940, Congress passed legislation

3. This state law also required the United States to provide

“a sufficient description by metes and bounds” of the land and

that “a map or plat of such lands” be filed in “the proper office of

record in the county” in which the land is located. 1897 Cal. Stat,

ch. 56, § 1. The statute was amended with minor modifications in

1943, see 1943 Cal. Stat. ch. 134 § 114, but was later repealed in

1947, see 1947 Cal. Stat. ch. 1532.

10a

Appendix A

applying to land acquired thereafter which required

the federal government’s assent to exclusive or partial

jurisdiction over federal property located within state

boundaries. See 40 U.S.C. § 255 (1940) (re-codified at 40

U.S.C. § 3112); Paul, 371 U.S. at 264; Adams v. United

States, 319 U.S. 312, 313, 63 S. Ct. 1122, 87 L. Ed. 1421

(1943). The 1940 Act provided that “it shall be conclusively

presumed that no [exclusive or partial] jurisdiction has

been accepted,” “[u]nless and until the United States has

accepted jurisdiction over lands hereafter to be acquired.”

40 U.S.C. § 255 (1940). The 1940 Act mandated that the

federal government indicate its acceptance of jurisdiction

by “filing a notice of such acceptance with the Governor of

such State or in such other manner as may be prescribed

by the laws of the State where such lands are situated.” Id.

Following re-codification, the statutory text makes clear

that “[i]t is not required that the Federal Government

obtain exclusive jurisdiction in the United States over

land or an interest in land it acquires.” 40 U.S.C. § 3112(a).

From 1941 to 1976, the United States acquired the

lands now comprising NAB Coronado, including the

Saipan Property, in a series of land transactions as well

as by dredging and filling portions of the San Diego Bay.

The precise mode and date of the federal government’s

acquisition of the Saipan property, however, is contested

by the parties.

The United States and Plaintiffs rely on a declaration

by Lonie Cyr, a senior land surveyor for the Navy, who

attests that the government did not acquire the lands

where the Saipan Property is located until 1955 through

11a

Appendix A

civil condemnation.4 According to Plaintiffs and the United

States, because the acquisition of land through civil

condemnation occurred after the 1940 Act, federal enclave

jurisdiction over the Saipan Property requires the federal

government’s assent to exclusive jurisdiction by “filing a

notice of... acceptance with the Governor of [the] State or

in such other manner as may be prescribed by the laws of

the State where [the] lands are situated.” 40 U.S.C. § 255

(1940). By this time, California had also enacted legislation

conditioning any transfer of jurisdiction on, inter alia, the

federal government’s written assent and the State Lands

Commission’s declaration that the transfer was “in the

interest of the State.” 1951 Cal. Stat. ch. 875, § 1. Because

Defendants have not offered any evidence that the federal

government assented to exclusive federal jurisdiction over

this property by filing notice or written consent, there

can be no federal enclave jurisdiction under this theory.

Defendants respond that the 1940 Act (and its notice

filing requirement) does not apply to the Saipan Property

because the relevant parcel was not “acquired” through

civil condemnation in 1955; it was instead “made” by the

United States by dredging and filling the San Diego Bay to

create a seaplane base between 1941 and 1943. According

to Defendants, the United States “has sole ownership over

land created in this manner,” and they rely on United

States v. F.E.B. Corp., 52 F.4th 916, 926-29 (11th Cir.

4. Defendants’ claim that this proffered fact was excluded

by the district court is incorrect. The district court expressly

overruled Defendants’ objections concerning the factual

contentions in the Cyr Declaration, such as how the property came

into the United States’ ownership. See supra n. 2.

12a

Appendix A

2022) to buttress their arguments.5 But, as the 1940 Act

clarified, the United States’ acquisition and ownership

of land does not require that the United States obtain

exclusive jurisdiction over that land. See 40 U.S.C. § 255

(1940); 40 U.S.C. § 3112(a). Therefore, Defendants’ claim of

enclave jurisdiction requires two predicates: (1) a factual

predicate that the Saipan Property originated from the

United States’ own dredging and filling operation from

1941 to 1943 and not the 1955 condemnation proceeding;

and (2) a legal predicate that land created by the United

States for its own use lies outside the scope of the 1940

Act because it was not “acquired” and instead passed

exclusively to the United States based on California’s 1897

ceding statute. We need not resolve the parties’ dispute

over the factual predicate because Defendants’ arguments

fail as to the legal predicate.

The 1940 Act does not itself define the term “acquire.”

See generally, 40 U.S.C. § 255 (1940); see also 40 U.S.C.

§§ 3101-3177. “Where Congress does not furnish a

definition of its own,” courts “generally seek to afford

a statutory term its ordinary or natural meaning.”

HollyFrontier Cheyenne Refin., LLC v. Renewable

Fuels Ass’n, 594 U.S. 382, 388, 141 S. Ct. 2172, 210 L.

Ed. 2d 547 (2021) (quotation and citation omitted). Under

Black’s Law Dictionary, the term “acquire” means “[t]o gain

5. That case involved a dispute about ownership of an island

created by the Navy via dredging activities near Key West,

Florida. The question presented was not about whether the United

States held exclusive jurisdiction over the island, but whether the

United States had a claim of ownership over the island pursuant

to the Submerged Lands Act, 43 U.S.C. §§ 1301-1315.

13a

Appendix A

possession or control of” or “to get or obtain” “by any

means.” Acquire, Black’s Law Dictionary (12th ed. 2024);

see also Acquire, Black’s Law Dictionary (3d ed. 1933)

(“[t]o become the owner of property; to make property

one’s own” “[t]o gain permanently”). Under both its

contemporary and historical plain meanings, the term

“acquire” contemplates the United States’ acquisition

of land created by dredging and filling operations and

therefore the Saipan Property falls within the scope of

the 1940 Act’s requirements.

This plain meaning of the term “acquire” also accords

with the purpose of the 1940 Act. The Act followed several

Supreme Court decisions that addressed “controversies

concerning the relation of federal and state powers over

government property,” and, specifically, whether the

federal government’s acquisition of property resulted

in exclusive federal jurisdiction. Adams, 319 U.S. at 314

(collecting cases). Before enactment, federal government

officials conducted a cooperative study which resulted

in legislation “aimed at giving broad discretion to the

various agencies in order that they might obtain only

the necessary jurisdiction.” Id. The 1940 Act achieved

this goal by enshrining a presumption against federal

jurisdiction in the absence of express federal assent. See

40 U.S.C. § 255 (1940).

Defendants rely on a definition of “acquire” from

an inapplicable statute relating to timber resources on

federal lands. See 16 U.S.C. § 620e (noting the definitions

of § 620e apply only “[f]or purposes of sections 620 to 620j

of this title [16 U.S.C. §§ 620—620j]”). And the relevant

14a

Appendix A

chapter at issue, Title 40, Subtitle II, Chapter 31, does

not contain any provision which would suggest that the

term “acquire” should be limited to lands obtained via

transaction as opposed to creation by the government

itself. See generally, 40 U.S.C. §§ 3101-3177.

Even if we were to credit Defendants’ contention

that the land was created by the United States and

therefore the 1940 Act does not apply because there was

no “acquisition,” the California 1897 statute does not save

their argument. That statute provided for the transfer of

exclusive jurisdiction only in lands “which may hereafter

be ceded or conveyed to said United States for” military

purposes or defense. 1897 Cal. Stat. ch. 56, § 1. If, under

Defendants’ theory, the land was created by the United

States through dredging and filling, the land cannot have

been ceded or conveyed by the State of California to the

United States.

Finally, Defendants presented a different theory

for exclusive jurisdiction before the district court that

merits some discussion. Defendants earlier argued that

the federal government retains exclusive jurisdiction over

lands created by dredging and filling for the government’s

use under the Submerged Lands Act. See 43 U.S.C.

§ 1313(a). This, too, is incorrect. Although § 1313 carves

out an exception to the Act’s general transfer of federal

title and claims to submerged lands within the territorial

boundaries of states, nothing in the text of § 1313 suggests

that it extinguished state jurisdiction over submerged

lands within its territories. Id. Indeed, Congress’ purpose

in passing the Submerged Lands Act was “not for the

15a

Appendix A

Federal Government to retain exclusive jurisdiction over

navigation of the waters above the submerged lands,

but for the Federal Government to retain concurrent

jurisdiction over those waters.” Barber v. State ofHawai’i,

42 F.3d 1185,1191 (9th Cir. 1994).

Accordingly, regardless of the parties’ competing

versions of events as to how the Saipan Property came

into the United States’ possession, Defendants have failed

to provide any evidence that the federal government has

assented to exclusive jurisdiction over it so as to establish

federal enclave jurisdiction.

The district court did not err in determining that

it lacked original jurisdiction under the federal officer

removal statute. Under 28 U.S.C. § 1442(a), federal courts

may exercise removal jurisdiction over actions commenced

in state court against an “officer (or any person acting

under that officer) of the United States or of any agency

thereof, in an official or individual capacity, for or relating

to any act under color of such office.” To satisfy federal

officer removal jurisdiction under § 1442(a), defendants

must demonstrate (1) that they are persons “within the

meaning of the statute;”6 (2) that “there is a causal nexus

between [their] actions, taken pursuant to a federal

officer’s directions, and plaintiff’s claims;” and (3) that

they “can assert a colorable federal defense.” Durham

6. It is undisputed that Defendants are “persons” for the

purposes of § 1442(a).

16a

Appendix A

v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir.

2006) (cleaned up).

The district court correctly determined that

Defendants did not meet the causal nexus requirement.

Under this requirement, a private defendant must

show that they were “acting under a federal officer in

performing some act under color of federal office” and

“that such action is causally connected with the plaintiff’s

claims against it.” Cnty. of San Mateo v. Chevron Corp.,

32 F.4th 733, 755 (9th Cir. 2022). Here, Plaintiffs’ claims

relate to SDFH and Lincoln’s alleged failure to properly

inspect, warn of, cure, and otherwise reasonably manage

the water-intrusion and mold contamination issues that

the Childs family experienced at the Saipan property.7

In their Notice of Removal, Defendants asserted that

they were acting under naval officers in “fulfill[ing]

the governmental function of housing military service

members and their families,” and they further claimed

that “the alleged bodily injuries and property damage

arose from [SDFH] and [Lincoln’s] performance of their

duties to the Navy under the Operating Agreement and

Property Management Agreement.”

Although Defendants have proffered numerous pieces

of evidence in support of their causal nexus theory, they fail

to show how their challenged actions occurred “because

of what they were asked to do by the Government.”

Goncalves By & Through Goncalves v. Rady Children’s

7. Plaintiffs also assert that many of Defendants’ actions

were in violation of state housing laws, their lease agreements,

and Defendants’ own policies.

17a

Appendix A

Hosp. San Diego, 865 F.3d 1237, 1245 (9th Cir. 2017)

(quoting Isaacson v. Dow Chem. Co., 517 F.3d 129, 137

(2d Cir. 2008)); see also Stirling v. Minasian, 955 F.3d

795,800 (9th Cir. 2020) (explaining that the “relationship

between someone acting under a federal officer and the

federal officer ‘typically involves subjection, guidance,

or control.’” (quoting Fidelitad, Inc. v. Insitu, Inc., 904

F.3d 1095,1099 (9th Cir. 2018)). Rather, the agreements,

policies, letters, and declarations offered by Defendants

demonstrate, at most, only general federal oversight over

Defendants’ housing management efforts and compliance

with applicable laws and regulations.

Our decision in Lake v. Ohana Military Communities

is instructive to our analysis. There, the defendant was

also a military housing public-private venture established

under the MHPI. 14 F.4th at 999. In holding that the

defendant failed to demonstrate a causal nexus between

its alleged failure to warn of pesticide contamination on

the premises and the Navy’s oversight, we emphasized the

“sole and exclusive management and control” afforded to

the government’s private counterpart and the defendant’s

inability to show that the Navy’s involvement in other

aspects of the housing arrangement amounted to anything

more than mere “consent power over aspects of the housing

arrangement.” Id. at 1004-05. After determining that no

federal officer had “directed” the defendant to take the

challenged actions, we concluded that “the central issue”

in the causal nexus analysis was “unmet.” Id. at 1005.

As in Lake, the Operating Agreement here shows that

the government’s private counterpart, Lincoln/Clark San

18a

Appendix A

Diego, LLC, enjoyed “exclusive management and control

of the business of [SDFH]” as well as “full authority to

take all actions necessary or appropriate to pursue the

business and carry out the purpose of the Company.” See

id. at 1004-05. Defendants’ reliance on other provisions of

the Operating Agreement relating to income sharing and

approval rights over matters like cash flow, contracts and

capitalization, hiring, and other clerical duties does not

demonstrate federal control or direction over the relevant

actions at issue here—mold testing and remediation. See

id. at 1004 (“It is not enough that the regulation is highly

detailed and . . . the private firm’s activities are highly

supervised and monitored.” (quotations and citation

omitted)).

Defendants also point to their Ground Leases for

evidence of federal control, but these agreements explicitly

assigned responsibilities, costs, and liability over mold

management during the applicable term to SDFH.8

Moreover, we have previously explained that “the federal

government’s willingness to lease federal property . . .

to a private entity for that entity’s commercial purposes

does not, without more, constitute the kind of assistance

required to establish that the private entity is ‘acting

under’ a federal officer.” Cnty. of San Mateo, 32 F.4th at

760.

8. Although the Ground Leases assigned liability for injuries

to third parties from pre-existing mold contamination to the

government, they provide that SDFH is “responsible for any claims

or liability for injury to persons to the extent resulting from ...

the disturbance of a Mold Condition during the applicable Term

of [SDFH’s] Lease.”

19a

Appendix A

Defendants rely on the Navy’s input and consent over

their Operation and Management Plan (“O&M Plan”),

which included a Mold Management Plan that SDFH

was required to prepare. But the O&M Plan reflects

minimum standards under applicable laws, regulations,

project requirements, and housing policies. Nothing in

the O&M Plan’s mold management guidance constrained

Defendants’ capacity to inspect premises for mold and

water contamination,9 prevented Defendants from further

investigating mold-related complaints, or restricted

Defendants’ capacity to remediate mold-related issues

within the premises.

Defendants’ reliance on the Navy’s Mold Policy

is similarly unavailing as that policy also lacks any

restraining or controlling language. Rather, the “policy”—

if it can be called that—informs readers of pertinent facts

about the hazards of mold, the efficacy of testing, and

general recommendations by expert bodies. The same

can be said of the Navy’s periodic “letter directives” to

MHPI-created entities, such as SDFH, as these letters

largely describe only general guidelines for minimum

housing standards or statutory requirements under 10

U.S.C. § 2891a. As the Supreme Court explains, “[a]

private firm’s compliance (or noncompliance) with federal

laws, rules, and regulations does not by itself fall within

the scope of the statutory phrase ‘acting under’ a federal

‘official.’” Watson v. Philip Morris Cos., Inc., 551 U.S. 142,

9. The testing guidance contained in the O&M Plan reflects

only what maintenance technicians are required to tell residents

when they request testing. The O&M Plan otherwise does not

appear to explicitly limit additional testing.

20a

Appendix A

153.127 S. Ct. 2301,168 L. Ed. 2d 42 (2007). In any event,

these letters were sent in 2020 and therefore post-date the

relevant time period. Accordingly, nothing in these letters

suffices to demonstrate that Defendants acted pursuant

to the Navy’s instructions with regard to mold inspection

and remediation.

Given the dearth of evidence suggesting federal

involvement in or control over Defendants’ mold

management practices, the cases in which we have found a

causal nexus are readily distinguishable. In Leite v. Crane

Co, the plaintiffs brought suit based on the defendants’

alleged failure to warn of potential asbestos exposure. 749

F.3d at 1119-20. There, the defendant-entity submitted

evidence showing the Navy’s knowledge of asbestos

hazards, its participation in the procurement of hazardous

equipment, and its “detailed specifications regulating the

warnings that equipment manufacturers were required

to provide.” Id. at 1120. Similarly, in Goncalves By and

Through Goncalves v. Rady Children’s Hosp. San Diego,

the challenged subrogation lien resulted directly from

the government’s delegation to the defendant-insurer its

authority to pursue subrogation claims on behalf of the

government. 865 F.3d at 1245.

Although we interpret the federal officer and agency

removal statute “broadly in favor of removal,” Durham,

445 F.3d at 1252, and “credit the defendant’s theory of

the case,” Defendants “must allege facts, not mere legal

conclusions, in compliance with the pleading standards

established in Bell Atlantic Corp. v. Twombly, 550 U.S.

544.127 S. Ct. 1955,167 L. Ed. 2d 929 (2007) and Ashcroft

21a

Appendix A

v. Iqbal, 556 U.S. 662,129 S. Ct. 1937,173 L. Ed. 2d 868

(2009).” Leite, 749 F.3d at 1121-22, 1124. As we have

explained, Defendants’ allegations suggest, at most, that

the Navy “direct[ed], supervise[d], and monitor[ed]” their

general housing activities, which does not plausibly meet

their causal nexus burden with regard to their challenged

conduct. Lake, 14 F.4th at 1004 (quoting Fidelitad, 904

F.3d at 1100). Because “the central issue in the causal

nexus analysis ... is unmet,” id. at 1005 (quotation and

citation omitted), Defendants have failed to establish

federal officer jurisdiction.10

Defendants further contend that the instant case is

removable pursuant to 28 U.S.C. § 1442(a)(1) because

SDFH is a federal agency.11 To determine whether an

entity is an “agency” under 28 U.S.C. § 451, this court

considers the factors laid out in In re Hoag Ranches, 846

10. Because we conclude that no federal officer directed

Defendants to take the challenged actions, we do not address

Defendants’ arguments that SDFH “was performing acts

delegated to it by the Navy,” Lake, 14 F.4th at 1005 n.4, nor do we

reach the question of whether Defendants asserted a “colorable

federal defense,” Durham, 445 F.3d at 1251.

11. For purposes of § 1442(a)(1), a federal “agency” is defined

as “any department, independent establishment, commission,

administration, authority, board or bureau of the United States

or any corporation in which the United States has a proprietary

interest, unless the context shows that such term was intended to

be used in a more limited sense.” 28 U.S.C. § 451; see also Lake,

14 F.4th at 1005 (applying § 451 to § 1442(a)(1)).

22a

Appendix A

F.2d at 1227-28. These factors are (1) “the extent to which

the alleged agency performs a governmental function,” (2)

“the scope of government involvement in the organization’s

management,” (3) “whether its operations are financed

by the government,” (4) “whether persons other than the

government have a proprietary interest in the alleged

agency and whether the government’s interest is merely

custodial or incidental,” (5) “whether the organization

is referred to as an agency in other statutes,” and (6)

“whether the organization is treated as an arm of the

government for other purposes, such as amenability to

suit under the Federal Tort Claims Act.” Id.

Regarding the first factor, Defendants note that

“SDFH took over operations for a significant volume

of military housing that was affordable to Navy

servicemembers within their [Basic Allowance for Housing

(“BAH”)] . . . something the Navy previously provided

on its own.” This argument, however, is foreclosed by

Lake, where we explained that “leasing housing on a

military installation under the MHPI” is not necessarily

a “historically and exclusively governmental function” and

“[m]erely leasing housing to a servicemember cannot itself

be a governmental function” since “BAH can be used on

or off a military base.” 14 F.4th at 1005.

Under the second factor, the government’s control

over SDFH’s housing operations is limited. As in Lake,

the “exclusive management and control” conferred to

SDFH’s private managing member, Lincoln/Clark San

Diego, LLC, coupled with the Navy’s “limited rights

and responsibilities,” demonstrate that “the government

23a

Appendix A

only ever had limited control.” Id. at 1006. “At most, this

factor does not weigh heavily in either direction” because

an entity subject to federal regulation does not, by virtue

of that regulation, become controlled by the federal

government. Id. at 1006.

As to the third factor, which relates to government

financing, Defendants highlight that the United States

capitalized SDFH at a rate of nearly twice the private

partner. But as we observed in Lake, “[a]n initial financial

contribution does not show ongoing operational financing.”

Id. at 1006. And Defendants have not presented any

evidence that the United States continued to finance

SDFH’s operations beyond its contributions during the

development period.

Under the fourth factor, whether any person other than

the government has a proprietary interest in the alleged

agency, the answer is clearly yes. As noted above, Lincoln/

Clark San Diego, LLC, retains “exclusive management

and control of the business of [SDFH].” See id. at 1006.

Defendants’ reliance on Acron Investments, Inc. v.

Federal Savings & Loan Insurance Corp., is misplaced.

In Acron, we concluded that the Federal Savings & Loan

Insurance Corporation was a federal agency based on

the government’s proprietary interest in the defendant

government corporation. 363 F.2d 236, 239-40 (9th Cir.

1966), cert denied, 385 U.S. 970,87 S. Ct. 506,17 L. Ed. 2d

434 (1966). Acron, however, is distinguishable because that

case addressed the character of a government corporation

in which the government had once owned all stock but

had since retired it. Id. at 240. Here, the government has

24a-

Appendix A

never retained an equivalent interest in SDFH. Rather,

any interest the government retains in SDFH is merely

“custodial” or “incidental” in light of Lincoln/Clark San

Diego, LLC’s exclusive control over the venture’s business.

Hoag Ranches, 846 F.2d at 1228; see also Lake, 14 F.4th at

1006 (finding the government’s interest in the defendant

public-private venture insufficient to satisfy factor four).

With respect to the fifth factor, Defendants do not cite

any statute that identifies SDFH or any public-private

venture formed for the purpose of military housing as

an agency. And Defendants concede that they do not

satisfy factor six. Balancing these factors, we conclude

that Defendants have not demonstrated that SDFH is a

federal agency under 28 U.S.C. § 1442(a)(1).

IV.

In light of the foregoing, the district court correctly

determined that Defendants have not carried their burden

in demonstrating federal enclave jurisdiction under 28

U.S.C. § 1331 or federal officer or agency jurisdiction

under 28 U.S.C. § 1442(a)(1).

AFFIRMED.

25a

APPENDIX B — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT,

FILED OCTOBER 8, 2025

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-1256

D.C. No.

3:19-cv-02329-JM-SBC

Southern District of California,

San Diego

LENA CHILDS, AN INDIVIDUAL;

DONALD CHILDS, AN INDIVIDUAL;

T. CHILDS, A MINOR BY AND THROUGH HER

GUARDIAN AD LITEM, LENA CHILDS; A.

CHILDS, A MINOR BY AND THROUGH HER

GUARDIAN AD LITEM, LENA CHILDS,

Plaintiffs-Appellees,

SAN DIEGO FAMILY HOUSING, LLC,

A CALIFORNIA LIMITED LIABILITY

CORPORATION AND LINCOLN MILITARY

PROPERTY MANAGEMENT LP,

A DELAWARE LIMITED PARTNERSHIP,

Defendants-Appellants,

and

26a

Appendix B

INDEPTH CORPORATION,

A CALIFORNIA CORPORATION,

Defendant-Appellee.

Before: MURGUIA, Chief Judge, and SANCHEZ and

H.A. THOMAS, Circuit Judges.

The panel has voted unanimously to deny the petition

for rehearing en banc. The full court has been advised

of the petition for rehearing en banc, and no judge has

requested a vote on it. See Fed. R. App. P. 40. The petition

for rehearing en banc (Dkt. 56) is therefore DENIED.

27a

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT, SOUTHERN DISTRICT OF

CALIFORNIA, FILED FEBRUARY 1, 2024

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Case No.: 3:19-cv-2329-JM-SBC

LENA CHILDS, et al.,

Plaintiffs,

SAN DIEGO FAMILY HOUSING LLC, et al.,

Defendants.

Filed February 1,2024

ORDER RE: SUBJECT MATTER JURISDICTION

Presently before the court is the United States and

Defendants San Diego Family Housing LLC and Lincoln

Military Property Management LP’s Supplemental Briefs

on the question of whether the court possesses subject

matter jurisdiction over this dispute. (Doc. Nos. 138; 140;

144; 146). Pursuant to Local Rule 7.1(d)(1), the court finds

the matters presented appropriate for resolution without

oral argument. For the reasons set forth below, the court

finds it lacks subject matter jurisdiction and REMANDS

this action to San Diego Superior Court.

28a

Appendix C

BACKGROUND

The instant action arises from allegations of mold

and other water-intrusion issues occurring on military

housing property.

On August 8,2016, Plaintiffs Donald and Lena Childs,

with their minor children, leased a dwelling at 1333

Saipan Road, Coronado, CA (“the Saipan Property”).

(Doc. Nos. 1-3 at VII 18-19, 21; 69 at 6; 128-4 at 2). The

Saipan Property is located in Silver Strand I, within the

boundaries of Naval Amphibious Base Coronado (“NAB

Coronado”). (Doc. Nos. 1 at 11 9; 69 at 6; 128-4 at 2).

On or about August 1, 2001, the United States Navy

(“Navy”) and Lincoln/Clark San Diego, LLC entered into

an Operating Agreement to form Defendant San Diego

Family Housing LLC (“SDFH”). (Doc. No. 1 at If 15).

SDFH is a public-private venture (“PPV”) formed under

the Military Housing Privatization Initiative (“MHPI”)

that operates and manages the Saipan Property. (Doc. No.

128-3 at 11 2). Under the MHPI, branches of the Armed

Forces can establish PPVs with private companies to

operate and manage housing on military property. Id. at

1f 3. SDFH, in turn, contracted with Defendant Lincoln

Military Property Management (“LMPM”) to provide

property management services. (Doc. Nos. 1-3 at U 9; 69

at 6; 128-3 at 11 7).

On May 2, 2019, Plaintiffs filed this suit in San

Diego Superior Court. (Doc. No. 1-2). On December

5, 2019, SDFH and LMPM—with Defendant InDepth

29a

Appendix C

Corporation’s consent—removed the case to this court on

the basis of federal enclave, federal agency, and federal

officer jurisdiction. (Doc. No. 1 at If 3). The Parties did not

dispute, at the time of removal, that the court possessed

subject matter jurisdiction over this case because the

events alleged in Plaintiffs’ Complaint allegedly occurred

on a federal enclave. (Doc. No. 34 at 4).

On December 4, 2023, after the case had already

progressed for several years, the United States, a nonparty, filed a Statement of Interest contending for the

first time that the Saipan Property was not within a

federal enclave and that the court, therefore, lacked

subject matter jurisdiction over this case. (Doc. No.

138 at 4). On December 8, 2023, Defendants SDFH and

LMPM filed a response to the United States’ Statement.

(Doc. No. 140).

On December 13, 2023, the United States filed an ex

parte application for leave to file a second supplemental

brief on the issue of whether the Saipan Property was

located within a federal enclave. (Doc. No. 141). As it

was critically important for the court to resolve this

question, the court granted the United States’ ex parte

application—over SDFH and LMPM’s objection. (Doc.

Nos. 142, 143). Per the court’s order, the United States

filed a second supplemental brief on December 18, 2023.

(Doc. No. 144). On January 5, 2024, SDFH and LMPH

filed a response. (Doc. No. 146).

30a

Appendix C

LEGAL STANDARD

“At the core of the federal judicial system is the

principle that the federal courts are courts of limited

jurisdiction.” Libhart v. Santa Monica Dairy Co., 592

F.2d 1062,1064 (9th Cir. 1979); Gunn v. Minton, 568 U.S.

251,256,133 S. Ct. 1059,185 L. Ed. 2d 72 (2013) (“Federal

courts are courts of limited jurisdiction, possessing only

that power authorized by Constitution and statute.”)

(internal quotation marks omitted). Under 28 U.S.C.

§ 1441(a), a party may remove a claim originating in

state court to federal court, only when the claim could

have initially been brought in federal court. See 28 U.S.C.

§ 1441(a) (“Except as otherwise expressly provided by Act

of Congress, any civil action brought in a State court of

which the district courts of the United States have original

jurisdiction, may be removed by the defendant or the

defendants, to the district court of the United States for

the district and division embracing the place where such

action is pending”).

“The removal statute is strictly construed against

removal jurisdiction^]” Calif, ex rel. Lockyer v. Dynegy,

Inc., 375 F.3d 831,838 (9th Cir. 2004). “A federal court is

presumed to lack jurisdiction in a particular case unless

the contrary affirmatively appears.” Stock W., Inc. v.

Confederated Tribes of Colville Reservation, 873 F.2d

1221,1225 (9th Cir. 1989). “Federal jurisdiction must be

rejected if there is any doubt as to the right of removal

in the first instance.” Gaus v. Miles, Inc., 980 F.2d

564, 566 (9th Cir. 1992). “[T]he burden of establishing

federal jurisdiction falls to the party invoking the

31a

Appendix C

statute.” Calif, ex rel. Lockyer, 375 F.3d at 838; see also

Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996)

(“A party invoking the federal court’s jurisdiction has the

burden of proving the actual existence of subject matter

jurisdiction.”).

A federal court must have subject matter jurisdiction

to properly adjudicate a dispute. If a court determines it

lacks subject matter jurisdiction over a removed action at

any stage of the proceedings, it must remand the action.

See Bruns v. NCUA, 122 F.3d 1251, 1257 (9th Cir. 1997)

(holding that remand for lack of subject matter jurisdiction

“is mandatory, not discretionary.”); see 28 U.S.C.S.

§ 1447(c) (“If at any time before final judgment it appears

that the district court lacks subject matter jurisdiction,

the case shall be remanded.”).

ANALYSIS

Evidentiary Objections

At the outset, the court first addresses the various

objections SDFH and LMPM lodged to evidence submitted

by the United States.

A. Declaration of Lonie K. Cyr

In support of its second supplemental brief, the

United States submits the declaration of Lonie K. Cyr,

a Senior Land Surveyor at Naval Facilities Engineering

Systems Command, Southwest (“NAVFAC Southwest”).

Declaration of Lonie K. Cyr in Support of the United

32a

Appendix C

States’ Second Statement of Interest (“Cyr Deck,” Doc.

No. 144-1). SDFH and LMPM object to various portions of

Mr. Cyr’s declaration as being speculative and conclusory,

for lack of foundation and personal knowledge, and for

making improper legal conclusions. (Doc. No. 146-3 at

2-7). SDFH and LMPM’s objections are OVERRULEDIN-PART and SUSTAINED-IN-PART.

“Personal knowledge may be inferred from

declarations that concern areas within the declarant’s

job responsibilities.” Silva v. AvalonBay Cmtys., Inc.,

No. LA CV15-04157 JAK (PL Ax), 2015 U.S. Dist. LEXIS

140673, at *10 n.l (C.D. Cal. Oct. 8, 2015). Here, Mr. Cyr

avers he currently serves as a Senior Land Surveyor at

NAVFAC Southwest and has worked at the Cadastral

Department at NAVFAC Southwest for seventeen years.

Cyr Deck, at U 1. In his current position, Mr.. Cyr states

he has the “authority and responsibility for managing

United States Navy and Marine Corps land interests.” Id.

Mr. Cyr further avers he reviewed “United States Navy

and California State Lands Commission documents” in

preparation for his declaration. Id. The above is sufficient

to lay a proper foundation and for the court to infer Mr.

Cyr possesses relevant personal knowledge as to the

United States’ acquisition of the various parcels of land

comprising NAB Coronado. SDFH and LMPM’s objections

on these grounds are, therefore, OVERRULED.

To the extent, however, that Mr. Cyr’s declaration sets

forth legal conclusions as to whether the United States

exercises exclusive jurisdiction over the parcel of land on

which the Saipan Property now sits, SDFH and LMPM’s

33a

Appendix C

objections are SUSTAINED. “[A] lay witness cannot offer

testimony to establish a legal conclusion.” Lee v. City of

Madera, No. CIV F 04-5607 AWI DLB, 2008 U.S. Dist.

LEXIS 95438, at *10 (E.D. Cal. Nov. 20, 2008); see e.g.,

Roosevelt Irrigation Dist. v. United States, No. CV-1500448-PHX-JJT, 2019 U.S. Dist. LEXIS 36530, at *13-14

(D. Ariz. Mar. 7,2019) (precluding witness from testifying

as to the legal conclusion of whether the United States

possessed a legal interest in certain property).

B. Parcel Map

In support of its second supplemental brief, the United

States also submits a map of NAB Coronado allegedly

identifying the boundaries of various parcels of land

acquired by the United States—relative to the location

of the Saipan Property. (Doc. No. 144-2). As SDFH and

LMPM correctly note, the Government provides no

indication of this map’s origin. (Doc. No. 146-3 at 7-8).

Because the court cannot readily determine the accuracy

of the information contained in this map—and cannot

simply assume this information to be true—it SUSTAINS

SDFH and LMPM’s objections. See e.g., Malheur Forest

Fairness Coal. v. Iron Triangle, Ltd. Liab. Co., No.

2:22-cv-01396-HZ, 2023 U.S. Dist. LEXIS 185203, at *11

(D. Or. Oct. 13, 2023) (declining to take judicial notice of

map where court could not assume accuracy of information

contained within it).

IL Federal Subject Matter Jurisdiction

The court next turns to the question of whether it

possesses subject matter jurisdiction over this case. In

34a

Appendix C

their Notice of Removal, SDFH and LMPM invoked the

court’s federal subject matter jurisdiction on two bases.

(Doc. No. 1 at IT 3). First, SDFH and LMPM contend

Plaintiffs’ suit is removable pursuant to 28 U.S.C. § 1331,

because the events alleged in Plaintiffs’ Complaint

occurred on a federal enclave. Id. Second, SDFH and

LMPM contend Plaintiffs’ suit is removable pursuant to

28 U.S.C. § 1442, because SDFH and LMPM were, at all

relevant times, acting under a federal officer, and because

SDFH is a federal agency. Id. The court considers each

of these alleged bases for subject matter jurisdiction, in

turn, below.

A. Federal Enclave Jurisdiction under 28 U.S.C.

§1331

The court first considers whether the Saipan Property

is located within the boundaries of a federal enclave, such

that the court has federal enclave jurisdiction over this

matter. This question, in turn, requires an understanding

of the nature of federal jurisdiction over lands acquired

by the United States.

Overview of Federal Enclave Jurisdiction

A federal enclave is land over which the federal

government exercises exclusive legislative jurisdiction.

See Paul v. United States, 371 U.S. 245,263-64,83 S. Ct.

426,9 L. Ed. 2d 292 (1963); United States v. Jenkins, 734

F.2d 1322, 1326 (9th Cir. 1983); see also, e.g., Allison v.

Boeing Laser Tech. Servs., 689 F.3d 1234,1236-37 (10th

Cir. 2012); Cabrales v. BAE Sys. San Diego Ship Repair,

35a

Appendix C

Inc., No. 21-cv-02122-AJB-DDL, 2023 U.S. Dist. LEXIS

217240, at *15 (S.D. Cal. Dec. 6,2023); Hillman v. Leixcon

Consulting, Inc., No. LA-16-CV-001186, 2016 U.S. Dist.

LEXIS 200818, at *9 (C.D. Cal. July 27,2016). The federal

enclave doctrine stems from the Enclave Clause of the

Constitution, which grants the federal government power

“[t]o exercise exclusive Legislation . . . over all Places

purchased by the Consent of the Legislature of the State

in which the Same shall be, for the Erection of Forts,

Magazines, Arsenals, dock-Yards, and other needful

Buildings.” U.S. Const, art. I, § 8, cl. 17. “’Exclusive’

jurisdiction for Enclave Clause purposes is equivalent to

the sweeping power that Congress exerts over the District

of Columbia, the first subject of the clause.” Club One

Casino, Inc. v. Bernhardt, 959 F.3d 1142,1151 n.6 (9th Cir.

2020). It “assumes the absence of any interference with

the exercise of the functions of the Federal Government

... so as to debar the State from exercising any legislative

authority[.]” Silas Mason Co. v. Tax Com. of Wash., 302

U.S. 186,197, 58 S. Ct. 233, 82 L. Ed. 187 (1937).

In contrast to having exclusive jurisdiction, “the

United States may have only a proprietary interest in

land.” Coso Energy Developers v. Cty. of Inyo, 122 Cal.

App. 4th 1512, 1520, 19 Cal. Rptr. 3d 669 (2004). “The

property in that case, unless used as a means to carry

out the purposes of the government, is subject to the

legislative authority and control of the States equally with

the property of private individuals.” Fort Leavenworth

R.R. v. Lowe, 114 U.S. 525, 531, 5 S. Ct. 995, 29 L. Ed.

264 (1885).

In general, there are two methods by which the

federal government may acquire exclusive jurisdiction

36a

Appendix C

over lands within a state: “by consensual acquisition of

land, or by nonconsensual acquisition followed by the

State’s subsequent cession of legislative authority over

the land.” Kleppe v. New Mexico, 426 U.S. 529,542, 96 S.

Ct. 2285, 49 L. Ed. 2d 34 (1976); see also Silas, 302 U.S.

at 197. “Significantly, under either method, the state must

agree to the transfer of jurisdiction for it to be valid.”

United States v. Davis, 726 F.3d 357, 363 (2d Cir. 2013).

In addition, for land acquired by the United States

after 1940, the Act of October 9, 1940, 40 U.S.C. § 255

(re-codified as 40 U.S.C. § 3112) applies. See Doe v. Camp

Pendleton & Quantico Hous. Ltd. Liab. Co., No. 20-cv224-GPC-AHG, 2020 U.S. Dist. LEXIS 67104, at *9 (S.D.

Cal. Apr. 16,2020). Under the Act, “United States agencies

and authorities may accept exclusive or partial jurisdiction

over lands acquired by the United States by filing a notice

with the Governor of the state in which the land is located

or by taking other similar appropriate action.” Adams v.

United States, 319 U.S. 312,313,63 S. Ct. 1122,87 L. Ed.

1421 (1943); United States v. Cassidy, 571 F.2d 534, 536

(10th Cir. 1978) (“As to lands acquired by the United States

after 1940, it has been held that the United States does

not acquire jurisdiction over lands acquired by it unless

it gives notice of acceptance.”).

Even after the United States accepts exclusive

jurisdiction over state land, the federal government may

subsequently take steps to reestablish state jurisdiction.

Swords v. Kemp, 423 F. Supp. 2d 1031, 1035 (N.D. Cal.

2005) (citing Cal. Gov. Code § 113). Under California

Government Code Section 113, the United States does so

37a

Appendix C

by first requesting that the state accept such a retrocession

in writing. Id. The State Lands Commission must then

hold a hearing to determine “whether acceptance of

the retrocession is in the best interest of the state” and

“certified copies of the Commissions orders or resolutions

must be recorded in the office of the county recorder.” Id.

ii.

Jurisdictional Status of the Saipan

Property

With the above principles in mind, the court turns to

the question of whether there is sufficient evidence the

Saipan Property is located within the boundaries of a

federal enclave.

According to the Government, NAB Coronado

comprises several different parcels of land acquired

between 1941 through 1976. Cyr Decl. at 11 3. In 1941,

the United States acquired various parcels of land that

make up NAB Coronado—Parcels A through E—in a

Civil Condemnation Proceeding, Case No. 120-SD. Cyr.

Decl. at U 4; 144-4 at 43-53, 81 (identifying Parcels A

through E). Based on the evidence on the record, the

United States retroceded any exclusive jurisdiction it

may have possessed over Parcels A through E in 1973.

(Doc. No. 138-1).

According to the Government, the United States

then acquired additional parcels of land making up NAB

Coronado—including land where the Saipan Property

is now located—in 1955, in a second Civil Condemnation

proceeding, Case No. 1802-SD. Cyr. Decl. at H 6. The action

38a

Appendix C

further consolidated this newly acquired land with Parcels

A through E to create Parcel G. Id. There is no evidence

on the record that the United States accepted exclusive

jurisdiction of these additional parcels of land by filing a

notice of acceptance or taking other similar appropriate

action. Id. at TH 6, 8. For these reasons, the Government

contends the United States possesses only a proprietary

interest in the land upon which the Saipan Property sits.

(Doc. No. 144 at 6-7).

According to SDFH and LMPM, in 1941, the Saipan

Property was located in what was referred in the 1941

Civil Condemnation Proceeding as Parcel F. (Doc. Nos.

146 at 6-7; 144-4 at 81 (identifying Parcel F)). Land was

allegedly then created in Parcel F by dredging and filling

a portion of San Diego Bay. (Doc. Nos. 146 at 6-7). SDFH

and LMPM contend the United States has sole ownership

and exercises exclusive jurisdiction over land created in

this manner. Id. at 7-8.

Here, even if the court were to credit SDFH and

LMPM’s version of how the United States acquired the

land upon which the Saipan Property now sits, SDFH

and LMPM have still not provided sufficient evidence to

show the Saipan Property exists within the boundaries

of a federal enclave.

Although not entirely clear, SDFH and LMPM

appear to present two theories as to how the United

States possesses exclusive jurisdiction over the Saipan

Property. First, SDFH and LMPM contend land created

by dredging and filling navigable coastal waters are

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automatically under the federal government’s exclusive

jurisdiction. Id. at 8. SDFH and LMPM infer this must

be true because the United States exercises jurisdiction

over the navigable waters of the United States. Id.

SDFH and LMPM’s first theory fails to differentiate

between when the United States exercises jurisdiction

and when it exercises exclusive jurisdiction. See Allison,

689 F.3d at 1237 (“The central principle of federal enclave

doctrine is that Congress has exclusive legislative

authority over these enclaves.”). SDFH and LMPM have

not cited any legal authority holding the United States

possesses exclusive jurisdiction over state coastal waters.

Indeed, SDFH and LMPM’s suggestion state coastal

waters are under the federal government’s exclusive

jurisdiction is contrary to law.

The Ninth Circuit’s decision in Beveridge v. Lewis, 939

F.2d 859 (9th Cir. 1991) case is instructive. In Beveridge,

plaintiffs challenged the City of Santa Barbara’s municipal

ordinance forbidding the mooring and anchoring of vessels

to the east of Stearns Wharf. Id. at 861. Specifically,

plaintiffs contended the federal government had exclusive

jurisdiction over the coastal waters of the United States

and the city ordinance was, therefore, an invalid attempt

by the local government to regulate an area preempted

by the federal government. Id. The Ninth Circuit rejected

this argument, noting it had found previously there

was congressional intent for there to be “joint federal/

state regulation of ocean waters within three miles of

shore.” Id.', see also, e.g., Barber v. Hawaii, 42 F.3d 1185,

1191 (9th Cir. 1994) (“[T]he purpose of the [Submerged

40a

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Lands Act] was not for the Federal Government to retain

exclusive jurisdiction over navigation of the waters above

the submerged lands, but for the Federal Government

to retain concurrent jurisdiction over those waters.”)

(emphasis added).

SDFH and LMPM have also not identified—nor has

the court been able to locate—any binding or persuasive

authority supporting an argument that coastal land the

United States “creates” is automatically subject to the

exclusive jurisdiction of the federal government. The

United States v. F.E.B. Corp., 52 F.4th 916 (11th Cir. 2022)

decision—relied upon heavily by SDFH and LMPM—is

not on point. (Doc. No. 146 at 8). The question in F.E.B.

Corp, was whether the United States held title to an island

created by the United States—not whether the United

States possessed exclusive jurisdiction over it. F.E.B.

Corp., 52 F.4th at 919.

SDFH and LMPM’s citation to the Submerged Lands

Act, 43 U.S.C. §§ 1311 et seq. is equally unpersuasive.

(Doc. No. 146 at 8). The Submerged Lands Act is directed

to title—not jurisdiction. Doucette v. San Diego Unified

Port Dist., No. 95-56126, 1997 U.S. App. LEXIS 28476,

at *3 (9th Cir. Oct. 10,1997) (“In passing the Submerged

Lands Act, however, Congress merely dictated that lands

beneath navigable waters within three miles of state

boundaries belong to the respective states.”).1 Again,

1. Indeed, in Doucette, albeit in an unpublished memorandum

disposition, the Ninth Circuit stated California held the authority

to regulate San Diego Bay. 1997 U.S. App. LEXIS 28476, at *9

(“[W]e conclude that [California] holds the authority to regulate

the Bay[.]”).

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ownership and exclusive jurisdiction are two distinct

concepts. Surplus Trading Co. v. Cook, 281 U.S. 647,650,

50 S. Ct. 455,74 L. Ed. 1091 (1930) (“[I]t is not unusual for

the United States to own within a State lands which are

set apart and used for public purposes. Such ownership

and use without more do not withdraw the lands from the

jurisdiction of the State.”).

As an alternative theory, SDFH and LMPM contend

California ceded exclusive jurisdiction of the land where

the Saipan Property now sits to the United States. (Doc.

No. 146 at 8-9).2 Specifically, in their Notice of Removal,

SDFH and LMPM contend the United States acquired

the land on which the Saipan Property is located—along

with the lands that comprise present-day California—in

1848, from Mexico, in the Treaty of Guadalupe Hidalgo.

(Doc. No. 1 at IT 9); see Thompson v. Doaksum, 68 Cal.

593,596,10 P. 199 (1886) (“The lands within the territorial

limits of the state of California were ceded to our general

government by the republic of Mexico under the treaty of

Guadalupe Hidalgo of February 2,1848.”).

2. The court notes that while SDFH and LMPM appear to

conflate these two theories, this alternative theory as to how the

United States possesses exclusive jurisdiction over the Saipan

Property is fundamentally inconsistent with SDFH and LMPM’s

contention the United States has always had exclusive jurisdiction

over this “United States made” land. This is because SDFH

and LMPM’s second theory presumes California, at some point,

held exclusive jurisdiction over the land underlying the Saipan

Property. Otherwise, it would be unnecessary for California to

have ceded jurisdiction over this land in order for the United States

to possess exclusive jurisdiction over it.

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Appendix C

In 1850, the United States admitted California to

the Union. See An Act for the Admission of the State of

California into the Union, 9 Stat. 452 (Sept. 9, 1850).

However, “when the United States admitted California

into the Union, it did not reserve exclusive jurisdiction

over the federal lands within the state, and therefore

retained only the rights of an ordinary proprietor.”

Graupner v. Lewis Ltd. Consultants, LLC, No. ED CV

12-1388-JFW (OPx), 2012 U.S. Dist. LEXIS 194116, at

*5 (C.D. Cal. Oct. 26, 2012); see also Hillman v. Leixcon

Consulting, Inc., No. LA-16-CV-001186, 2016 U.S. Dist.

LEXIS 200818, at *8 (C.D. Cal. July 27, 2016) (“In 1850,

when the United States admitted California to the Union,

it did not reserve exclusive jurisdiction over federal lands

within California.”).

SDFH and LMPM contend the land upon which the

Saipan Property sits was then ceded to the United States

under California’s 1897 cession statute, which states:

The State of California hereby cedes to the

United States of America exclusive jurisdiction

over all lands within this State now held,

occupied or reserved by the Government of the

United States for military purposes or defense,

or which may hereafter be ceded or conveyed to

the United States for such purposes; provided

that a sufficient description by metes and

bounds and a map or plat of such lands be filed

in the proper office of record in the county in

which the same are situated[.]

(Doc. Nos. 1 at 11 9; 1-6 at 15-16; 146 at 8-9).

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Appendix C

Under the explicit terms of the 1897 statute, cession

occurs if at least two specific requirements are met: (1) if

the United States provides a sufficient description of the

metes and bounds of this land; and (2) a map or plat of such

lands is filed in the proper office of record in the county in

which the land is located. See Gillespie v. Centerra Servs.

Inti, Inc., No. EDCV21-2028 JGB (SHKx), 2022 U.S. Dist.

LEXIS 211071, at *46 (C.D. Cal. Sep. 7, 2022); Hillman,

2016 U.S. Dist. LEXIS 200818, at *14.3

SDFH and LMPM contend the above two requirements

were met because a map outlining Parcel F was attached

in Civil Condemnation Proceeding No. 1802-SD and

“appears” to bear a County map stamp. (Doc. No. 146

at 8-9). The court does not agree. Even if a map of

Parcel F may have been filed, there is no evidence in the

record that the United States also provided a metes and

boundary description of Parcel F. Instead, as SDFH and

LMPM themselves note, Parcel F is not mentioned in the

condemnation documents. Id. at 9.

Regardless, SDFH and LMPM have also not provided

evidence the United States accepted jurisdiction of this

land from California as required under the Act of October

9,1940. Indeed, Mr. Cyr’s declaration explicitly indicates

3. “In 1943, California codified that statute as Government

Code § 114.” Jackson v. Mission Essential Pers., LLC, No. CV

11-1444-R, 2012 U.S. Dist. LEXIS 199920, at *3 (C.D. Cal. Apr.

13, 2012). The 1984 version of the statute still provides that: “[a]

sufficient description by metes and bounds and a map or plat of

the lands shall first be filed in the proper office of record in the

county in which the lands are situated.” (Doc. No. 146-1 at 11-12).

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Appendix C

the Navy has no record of such an acceptance. Cyr.

Decl. at H 8. “[I]n the absence of an explicit acceptance

of jurisdiction by the federal government, the federal

government’s possession is ‘simply that of an ordinary

proprietor’ and does not give rise to federal subject matter

jurisdiction[.]” Cmty. Hous. P’ship v. Byrd, No. 13-3031

JSC, 2013 U.S. Dist. LEXIS 164661, at *12 (N.D. Cal.

Nov. 19, 2013); see Adams, 319 U.S. at 313 (“Since the

government had not accepted jurisdiction in the manner

required by the Act, the federal court had no jurisdiction

of this proceeding.”); United States v. Stone, No. CR120072-JCC, 2013 U.S. Dist. LEXIS 168336, at *6 (E.D.

Cal. Nov. 26, 2013) (“[T]he United States government

does not have exclusive or concurrent jurisdiction over

land acquired from a state after 1940 unless it explicitly

accepts jurisdiction by filing notice with the state.”).4

For the reasons stated above, the court concludes

there is insufficient evidence the Saipan Property is

located within the boundaries of a federal enclave.

4. For the same reasons, if the court were to credit the

Government’s version of how the United States acquired the

land upon which the Saipan Property now sits, there would still

be insufficient evidence that the federal government possesses

exclusive jurisdiction over this land. Absent evidence on the record

the United States accepted exclusive jurisdiction of the additional

parcels of land acquired in Civil Condemnation Proceeding No.

Case No. 1802-SD, the court cannot conclude this land is a federal

enclave.

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III. Whether the Court has Federal Officer/Federal

Agency Jurisdiction under 28 U.S.C. § 1442

The court next looks to whether it has federal officer

or federal agency jurisdiction over this case under 28

U.S.C. § 1442(a)(1).

A. Federal Officer Jurisdiction

In their Notice of Removal, SDFH and LMPM contend

this action is also removable because, at all relevant times,

SDFH and LMPM were acting under officers of the Navy

“to fulfill the governmental function of housing military

service members and their families.” (Doc. No. 1 at UU 3,

30).

The federal officer removal statute permits removal

of a state-court action against an “officer (or any person

acting under that officer) of the United States or of any

agency thereof, in an official or individual capacity, for or

relating to any act under color of such office.” 28 U.S.C.

§ 1442(a)(1). “To invoke § 1442(a)(1) removal, a defendant

in a state court action ‘must demonstrate that (a) it is a

‘person’ within the meaning of the statute; (b) there is

a causal nexus between its actions, taken pursuant to

a federal officer’s directions, and plaintiff’s claims; and

Inc. v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018)

(quoting Durham v. Lockheed Martin Corp., 445 F.3d

1247,1251 (9th Cir. 2006)).

Here, the court finds SDFH and LMPM have not

satisfied their burden of proving the “causal nexus”

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requirement for removal jurisdiction is factually supported.

See Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679,

684 (9th Cir. 2022) (“[D]efendants seeking removal still

bear the burden of proving by a preponderance of the

evidence that the ... causal nexus requirement^ for

removal jurisdiction [is] factually supported.”) (internal

quotation marks omitted).

“To demonstrate a causal nexus, the private person

must show: (1) that the person was ‘acting under’ a federal

officer in performing some ‘act under color of federal

office,’ and (2) that such action is causally connected

with the plaintiff’s claims against it.” Cty. of San Mateo

v. Chevron Corp., 32 F.4th 733, 755 (9th Cir. 2022). The

causal nexus inquiry “focuses on whether the defendant

was involved in an effort to assist, or to help carry out,

the duties or tasks of a federal superior.” Lake v. Ohana

Military Cmtys., LLC, 14 F.4th 993,1004 (9th Cir. 2021)

(internal quotation marks omitted).

Here, SDFH and LMPM do not contend they were

acting directly under the instructions of a federal officer.

SDFH and LMPM have not pointed to any evidence in the

record of communications between SDFH, LMPM, and a

federal officer about Plaintiffs’ complaints. Fidelitad, Inc.

v. Insitu, Inc., 904 F.3d 1095, 1099-1100 (9th Cir. 2018)

(noting lack of evidence of any communication between

defendant and federal officer regarding actions taken by

defendant against plaintiff).

In the absence of such an explicit directive, SDFH

and LMPM contend they were acting pursuant to the

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Appendix C

instructions of the Navy because of their adherence to a

Mold Management Plan (“O&M Plan”). (Doc. No. 146 at 14).

The O&M Plan is an “internal policy for the management

of water-intrusion and mold-related conditions” in LMPMmanaged military family housing. (Doc. No. 130-4 at 1).

It sets forth certain “procedures and policies” LMPM

employees must follow “when addressing potential water

intrusion and mold conditions.” Id. According to SDFH

and LMPM, the O&M Plan was developed “with the

Navy’s input and approval^]” (Doc. No. 128-3 at H 19).

As the Ninth Circuit recently noted in Lake v.

Ohana Military Communities, LLC, however, “§ 1442(a)

(1) does not allow removal simply because a federal

agency directs, supervises, and monitors a company’s

activities in considerable detail.” 14 F.4th at 1004

(internal quotation marks omitted). The Lake decision is

particularly instructive here. In Lake, the Ninth Circuit

considered whether federal officer jurisdiction existed

over a case originally filed in state court directed to the

alleged failures of Ohana Military Communities, LLC

(“Ohana”)—a PPV formed under the MHPI—to inform

residents about pesticide contamination in military

housing property. Id. at 998.

The Ninth Circuit held federal officer jurisdiction did

not exist because the “’central issue’ in the causal nexus

analysis—whether a federal officer directed the defendant

to take the action challenged—[was] unmet.” Id. at 1005.

The Ninth Circuit based its decision on the fact that:

(1) defendants had not argued that the Navy had control

over Ghana’s decision to disclose pesticide contamination;

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(2) the Navy disclaimed management and control over

Ghana; (3) and the Navy’s consent power over certain

aspects of this arrangement did not meet casual nexus

standard. Id. at 10045.

Although the Lake decision would appear to be

strikingly similar, SDFH and LMPM contend Lake is

nonetheless distinguishable because Ghana’s relationship

with the Navy was far more tenuous than SDFH and

LMPM’s, and because unlike in Lake, SDFH and LMPM

were required to follow the O&M Plan. (Doc. No. 146 at 14).

The evidence on the record does not support SDFH and

LMPM’s arguments the challenged actions (or omissions)

in this case were controlled by the Navy. Like in Lake,

the Operating Agreement between the Navy and Lincoln/

Clark San Diego, LLC disclaims Navy responsibility over

management and control decisions, stating Lincoln/Clark

San Diego, LLC—and not the Navy—has “exclusive

management and control” over SDFH, including “full

authority to take all actions necessary or appropriate to

pursue the business and carry out” SDFH’s purpose. (Doc.

No. 130 at 20); see also Lethgo v. CP IV Waterfront, LLC,

No. 22-00052 JAO-WRP, 2022 U.S. Dist. LEXIS 107381,

at *10 (D. Haw. June 16,2022) (finding lack of causal nexus

where, among other things, agreement between private

corporation and Navy disclaimed Navy responsibility).

As the Ninth Circuit noted, the Navy itself regards PPV

housing as “owned by a private entity and governed by a

business agreement in which the Navy has limited rights

and responsibilities!/]” Lake, 14 E4th at 1004-05 (internal

quotation marks omitted).

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The fact that the Navy reviewed and approved the

O&M Plan is also insufficient to show SDFH and LMPM’s

actions were controlled by the Navy. As the Ninth Circuit

held in Lake, “[t]he Navy’s consent power over aspects

of the housing arrangement” does not satisfy the causal

nexus requirement. 14 F.4th at 1005. Instead, “[Requiring

federal agency consent on collateral points ‘fall[s] within

the simple compliance with the law circumstance [.]’” Id.

(quoting Riggs v. Airbus Helicopters, Inc., 939 F.3d 981,

989 (9th Cir. 2019)); see Cty. of San Mateo v. Chevron

Corp., 32 F.4th 733, 757 (9th Cir. 2022) (“[A] person’s

compliance with the law (or acquiescence to an order)”

does not “amount to ‘acting under’ a federal official

who is giving an order or enforcing the law.”) (internal

quotation marks omitted); Early v. Northrop Grumman

Corp., No. 2:13-cv-3130-ODW(MRWx), 2013 U.S. Dist.

LEXIS 104628, at *13 (C.D. Cal. July 24,2013) (rejecting

defendant’s arguments it acted under a federal officer

because it was required by agreement to comply with

certain Air Force standards); see also Clover v. Camp

Pendleton & Quantico Hous. LLC, 525 F. Supp. 3d 1140,

1144 (S.D. Cal. 2021) (“Although Defendants have pointed

to a Navy-approved mold management plan and other

Navy guidance on how to manage the property, there is

nothing to suggest that the government was exercising

its discretion and that Defendants were merely following

orders as given.”).

Finally, SDFH and LMPM’s specific allegations as

to how decisions they made were directed by the Navy is

contrary to evidence. See Early, 2013 U.S. Dist. LEXIS

104628, at *13 (a defendant “has the burden to exclude the

50a

Appendix C

possibility that whatever acts it took or did not take were

not justified by federal direction.”). For example, SDFH

and LMPM contend LMPM was prevented from testing

Plaintiffs’ home for mold without a recommendation

from a third-party consultant, as doing so “would have

gone against the Navy’s mold testing policy.” (Doc. No.

146 at 14). This is not, however, what the O&M Plan

actually provides. Instead, the O&M Plan states if a

resident requests mold testing, maintenance technicians

must inform the resident that LMPM “follows EPA and

industry guidelines that call for mold testing only if that

testing is recommended by a third-party inspector in their

professional judgment.” (Doc. No. 130-4 at 9). The O&M

Plan further states that if the resident insists, the requests

should be brought to the District Manager or Maintenance

Supervisor. Id. Nowhere does the O&M Plan dictate mold

testing is prohibited without a recommendation from

a third-party consultant. Although SDFH and LMPM

additionally claim the Navy audits their mold remediation

decisions, there is no evidence LMPM submitted a work

order request to address Plaintiffs’ complaints that was

denied by the Navy.

As another example, SDFH and LMPM contend the

Navy provides SDFH with periodic “letter directives.”

(Doc. Nos. 128-4 at 110-131; 146 at 13). SDFH and LMPM

do not, however, contend any of these letter directives

affected their decisions in this case. Further, the majority

of these “directives” appear to merely describe legal

regulations the Navy expects entities created under

the MHPI to follow. (Doc. No. 128-4 at 115 (describing

requirement codified in 10 USC § 2891a(d)(i) and relaying

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expectation by Navy that entities created under MHPI

comply with this statutory requirement)). These directives

are insufficient to show SDFH and LMPM were “acting

under” the Navy in this case. In order for a private person

to be “acting under” a federal officer, the relationship

“must go beyond simply complying with the law, even if the

laws are highly detailed[.]” Goncalves v. Rady Children’s

Hosp. San Diego, 865 F.3d 1237, 1245 (9th Cir. 2017)

(internal quotation marks omitted).

For the reasons stated above, the court finds SDFH

and LMPM have failed to establish at least the causal

nexus requirement for federal officer jurisdiction.

B. Federal Agency Jurisdiction

As a final ground for federal subject matter jurisdiction

in their Notice of Removal, SDFH and LMPM contend

this case is removable pursuant to 28 U.S.C. § 1442(a)(1),

because SDFH is a federal agency. (Doc. No. 1 at 113).

28 U.S.C. § 1442(a)(1) also permits removal of a state

court action against “[t]he United States or any agency

thereof.” As used in § 1442(a)(1), a “federal agency” is

defined as “any department, independent establishment,

commission, administration, authority, board or bureau of

the United States or any corporation in which the United

States has a proprietary interest, unless the context

shows that such term was intended to be used in a more

limited sense.” 28 U.S.C. § 451; see Lake, 14 F.4th at 1005

n.5 (citing 28 U.S.C. § 451 in determining whether action

was removable under federal agency jurisdiction); Carney

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v. City of San Diego, No. 21cv392 DMS (MDD), 2021

U.S. Dist. LEXIS 128439, at *4 (S.D. Cal. July 9, 2021)

(explaining that “28 U.S.C. § 451 defines ‘agency’ for the

purposes of Title 28[.]”).

The Ninth Circuit has set forth a six-factor test for

determining whether an entity falls within 28 U.S.C.

§ 451’s definition of “federal agency”:

(1) the extent to which the alleged agency

performs a governmental function; (2) the

scope of government involvement in the

organization’s management; (3) whether its

operations are financed by the government;

(4) whether persons other than the government

have a proprietary interest in the alleged

agency and whether the government’s interest

is merely custodial or incidental; (5) whether

the organization is referred to as an agency in

other statutes; and (6) whether the organization

is treated as an arm of the government for other

purposes, such as amenability to suit under the

Federal Tort Claims Act.

Lake, 14 F.4th at 1005 (quoting In re Hoag Ranches, 846

F.2d 1225,1227-28 (9th Cir. 1988)).

The Ninth Circuit’s Lake decision is, again, instructive.

In Lake, the Ninth Circuit found none of the In re Hoag

factors supported finding Ghana—a PPV created pursuant

to the MHPI—to be a “federal agency.” Id. In a similar

vein, none of the six In re Hoag factors support finding

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Appendix C

SDFH to be an “agency” here. Indeed, as the court notes

below, although SDFH and LMPM contend the Lake

decision is distinguishable, many of the arguments SDFH

and LMPM raise as to why SDFH is a “federal agency”

are the same as those already considered and rejected by

the Ninth Circuit.

With respect to the first In re Hoag factor—whether

SDFH performs a governmental function—the Ninth

Circuit already found in Lake that “[m]erely leasing

housing to a servicemember cannot itself be a governmental

function” as a service member’s Basic Allowance for

Housing (“BAH”) “can be used on or off a military base.”

14 F.4th at 1005. “Otherwise, every private housing (or

other service) provider that leases to a servicemember

would perform a governmental function.” Id.

In an attempt to distinguish Lake, SDFH and LMPM

contend SDFH performs a government function because

unlike private landlords, SDFH is required to ensure

a military service member’s BAH is sufficient to cover

the cost of housing. (Doc. No. 146 at 20). While SDFH

and LMPM argue this is a “key difference,” the court

is unclear as to its significance. Even private landlords

may be subject to government regulations limiting the

amounts they can charge for rent. See Peace Ranch LLC

v. Newsom, No. 2:21-cv-01651-JAM-AC, 2022 U.S. Dist.

LEXIS 22842, at *3 (E.D. Cal. Feb. 7, 2022) (“Since

2019, California state law limits the amount an owner of

residential property can increase rent.”). This does not

mean all such landlords are performing a government

function. For these reasons, the court finds the first In

54a

Appendix C

re Hoag factor does not support finding SDFH to be a

“federal agency.”

Moving to the second In re Hoag factor, “the scope

of government involvement” in SDFH’s management also

does not support finding SDFH to be a “federal agency.”

Here, SDFH and LMPM contend the degree of control the

Navy exercises over SDFH is far more significant than

the PPV at issue in Lake. (Doc. No. 146 at 12-13,20). The

court does not agree.

Like the MHPI PPV in Lake, the federal government’s

involvement in SDFH’s management is limited. The

Operating Agreement entered into between the Navy

and Lincoln/Clark San Diego, LLC specifically disclaims

Navy responsibility over SDFH’s management. (Doc. No.

130 at 20). Instead, the Operating Agreement explicitly

grants Lincoln/Clark San Diego, LLC—and not the

Navy—the authority to perform a host of managerial

responsibilities including: (1) to “expend the capital and

revenues” of SDFH; (2) to “employ, compensate, and

dismiss ... employees, agents, independent contractors,

attorneys, and accountants”; (3) to enter into agreements

it deems “necessary or appropriate to accomplish” SDFH’s

purpose; (4) to borrow money; (5) to purchase insurance;

(6) to deposit and maintain SDFH’s funds—and other

such managerial responsibilities. Id. at 20-21. In contrast,

the Navy possesses only limited consent power—such as

the authority to request that a failing property manager

be replaced, to consent to mergers, or to consent to

whether to encumber additional debt. Id. at 59-64. As

the Ninth Circuit noted in Lake, the government does not

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“control” an agency where the government is “removed

from participation in day-to-day management,” even if

a corporation remains subject to federal regulation. 14

F.4th at 1006 (internal quotation marks omitted). At most,

as in Lake, in light of the limited extent of the federal

government’s involvement in SDFH’s management, this

factor “does not weigh heavily in either direction.” Id.

With respect to the third In re Hoag factor, there

is no evidence SDFH’s “operations are financed by the

government.” While the United States may have made

an initial contribution to capitalize SDFH, “[a]n initial

financial contribution does not show ongoing operational

financing.” Lake, 14 F.4th at 1006. Absent evidence the

Navy is continuing to finance SDFH’s operations, the

Navy’s initial financial contribution, alone, does not

support finding SDFH to be a “federal agency.”

Continuing to the fourth In re Hoag factor, it is

indisputable “persons other than the government” have a

proprietary interest in SDFH. Specifically, the Operating

Agreement indicates Lincoln/Clark San Diego, LLC also

made a capital contribution and possesses a “Membership

Interest” in SDFH. (Doc. No. 130 at 11, 54-55). This

factor, therefore, also does not support finding SDFH to

be a “federal agency.”

With respect to the fifth In re Hoag factor, SDFH

and LMPM contend SDFH could qualify as an “agency”

pursuant to other statutes—but provides no legal

authority actually supporting this statement. Contrary to

SDFH and LMPM’s argument, the question is not whether

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SDFH could qualify as an agency pursuant to other

federal statutes. Instead, the court must consider whether

there is evidence SDFH is considered a federal agency

under other federal statutes. See Waldron v. FDIC, 935

F.3d 844,848 (9th Cir. 2019) (finding FDIC to be a “federal

agency” where there was legal authority supporting the

fact that it was considered a federal agency under other

statutes, including the Federal Tort Claims Act). Absent

such evidence or legal authority, this factor also does not

support finding SDFH to be a “federal agency.”

Finally, SDFH and LMPM do not address the sixth

factor—whether SDFH is treated as an arm of the

government for other purposes. Any arguments this

factor supports finding SDFH to be a “federal agency”

are, therefore, waived. See Indep. Towers of Wash. v.

Washington, 350 F.3d 925, 929 (9th Cir. 2003) (the court

reviews only “issues which are argued specifically and

distinctly” by the parties); Greenwood v. FAA, 28 F.3d

971, 977 (9th Cir. 1994) (courts “will not manufacture

arguments for [either party], and a bare assertion does

not preserve a claim, particularly when, as here, a host

of other issues are presented for review”).

Based on the above, the court concludes the balance of

factors “tips towards treating” SDFH as a private entity,

not a federal agency. Lake, 14 F.4th at 1006. As such,

SDFH and LMPM have not established that the court has

federal agency jurisdiction over this dispute.

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CONCLUSION

For the reasons set forth above, the court REMANDS

this action to San Diego Superior Court for lack of subject

matter jurisdiction. LMPM and SDFH’s Motion for

Summary Judgment (Doc. No. 128) and Motion to Seal

(Doc. No. 129) are additionally DENIED WITHOUT

PREJUDICE as moot.

The Clerk of Court is DIRECTED to close the case.

IT IS SO ORDERED.

DATED: February 1,2024 /s/ Jeffrey T. Miller

JEFFREY T. MILLER

United States District Judge

58a

APPENDIX D — RELEVANT

STATUTORY PROVISION

28 U.S.C. §1442

a) A civil action or criminal prosecution that is

commenced in a State court and that is against or directed

to any of the following may be removed by them to the

district court of the United States for the district and

division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any

officer (or any person acting under that officer) of the

United States or of any agency thereof, in an official or

individual capacity, for or relating to any act under color

of such office or on account of any right, title or authority

claimed under any Act of Congress for the apprehension

or punishment of criminals or the collection of the revenue.

(2) A property holder whose title is derived from any

such officer, where such action or prosecution affects the

validity of any law of the United States.

(3) Any officer of the courts of the United States,

for or relating to any act under color of office or in the

performance of his duties;

(4) Any officer of either House of Congress, for or

relating to any act in the discharge of his official duty

under an order of such House.

(b) A personal action commenced in any State court by

an alien against any citizen of a State who is, or at the

time the alleged action accrued was, a civil officer of the

59a

Appendix D

United States and is a nonresident of such State, wherein

jurisdiction is obtained by the State court by personal

service of process, may be removed by the defendant to

the district court of the United States for the district and

division in which the defendant was served with process.

removal under subsection (a), a law enforcement officer,

who is the defendant in a criminal prosecution, shall be

deemed to have been acting under the color of his office

if the officer —

(1) protected an individual in the presence of the officer

from a crime of violence;

(2) provided immediate assistance to an individual who

suffered, or who was threatened with, bodily harm; or

(3) prevented the escape of any individual who the officer

reasonably believed to have committed, or was about to

commit, in the presence of the officer, a crime of violence

that resulted in, or was likely to result in, death or serious

bodily injury.

(d)

In this section, the following definitions apply:

(1) The terms “civil action” and “criminal prosecution”

include any proceeding (whether or not ancillary to

another proceeding) to the extent that in such proceeding

a judicial order, including a subpoena for testimony or

documents, is sought or issued. If removal is sought for a

proceeding described in the previous sentence, and there

60a

Appendix D

is no other basis for removal, only that proceeding may

be removed to the district court.

(2) The term “crime of violence” has the meaning given

that term in section 16 of title 18.

(3) The term “law enforcement officer” means any

employee described in subparagraph (A), (B), or (C) of

section 8401(17) of title 5 and any special agent in the

Diplomatic Security Service of the Department of State.

(4) The term “serious bodily injury” has the meaning

given that term in section 1365 of title 18.

(5) The term “State” includes the District of Columbia,

United States territories and insular possessions, and

Indian country (as defined in section 1151 of title 18).

(6) The term “State court” includes the Superior Court

of the District of Columbia, a court of a United States

territory or insular possession, and a tribal court.

61a

APPENDIX E — DECLARATION OF PHILIP RIZZO

OF THE UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF CALIFORNIA,

FILED OCTOBER 26, 2023

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CASE NO. 3:19-cv-2329-JM-SBC

LENA CHILDS, et al.,

Plaintiffs,

vs.

SAN DIEGO FAMILY HOUSING LLC, et al.,

Defendants.

[F.R.C.P. 56]

Date: November 27, 2023

Time: 10:00 a.m.

Judge: Hon Jeffrey T. Miller

Courtroom: 15B

DECLARATION OF PHILIP RIZZO IN SUPPORT

OF DEFENDANTS SAN DIEGO FAMILY

HOUSING LLC’S AND LINCOLN MILITARY

PROPERTY MANAGEMENT LP’S MOTION FOR

SUMMARY JUDGMENT OR ALTERNATIVELY,

PARTIAL SUMMARY JUDGMENT

I, Philip Rizzo, declare as follows:

62a

Appendix E

1. I am a Vice President of LMH San Diego Property

Management GP, Inc., the general partner of Lincoln

Military Property Management LP (“LMPM”). Lincoln

Property Company No. 2179, LP is one of the two sole

members of Lincoln/Clark San Diego, LLC, which is

one of the two members of San Diego Family Housing,

LLC (“SDFH”). The other member of SDFH, is the

United States of America, Department of the Navy. I

have worked for various companies operating under the

“Lincoln” or “Lincoln Military Housing” names since

2012. Since October 2021, I have worked for various

companies operating under the “Liberty” or “Liberty

Military Housing” names; October 2021 is when an

Employee Stock Option Plan was formed and the trade/

brand name of “Lincoln Military Housing” switched to

“Liberty Military Housing.” I have intimate knowledge

regarding all “Lincoln Military Housing” and “Liberty

Military Housing” related companies and affiliates

including those defendants named in this case, SDFH and

LMPM, and the military housing communities with which

they are affiliated, as well as regarding the contracts and

contractual relationships between these entities and the

United States Navy relating to such housing. I am also

intimately familiar with the policies which have been

created by SDFH and LMPM, with the input of the United

States Navy, which relate to such military housing. The

facts stated herein are of my own personal knowledge,

and if called as a witness, I could and would competently

testify thereto. As to matters alleged on information and

belief, I believe them to be true.

2. Plaintiffs were tenants at the property located at

1333 Saipan Road, Coronado, California (“the Property”),

63a

Appendix E

from on or about August 2016 to December 2017. The

Property is located in the Silver Strand I neighborhood,

a military housing community within the jurisdictional

boundaries of Naval Amphibious Base Coronado, which

is part of the larger Naval Base Coronado military

installation. Plaintiffs leased the Property, which is

military housing, from SanDiego Family Housing, LLC

(“SDFH”), which is a public-private venture (“PPV”)

between the United States Navy and Lincoln/Clark

San Diego, LLC, which was formed under the Military

Housing Privatization Initiative (10 U.S.C. §§2871-85)

through the Congress’ 1996 Defense Authorization Act.

The property manager of the Property is and was at all

relevant times, Defendant Lincoln Military Property

Management, LP (“LMPM”). A true and correct copy of

the Plaintiffs’ Lease for the Property (with all addenda

thereto) is attached to my declaration as Exhibit A. I note

that this Lease template for SDFH is used for all SDFH

properties, some of which are under exclusive federal

jurisdiction like those within Naval Amphibious Base

Coronado or Marine Corps Air Station Miramar, as well

as those which are on property that is under concurrent

jurisdiction with the state of California, like Murphy

Canyon.

3. Under the Military Housing Private Initiative

(“MHPI”), which was adopted by Congress to improve

the quality of service members’ housing, various

branches of the Armed Forces established public-private

ventures (“PPVs”) to own, develop and manage military

housing, taking the day to day duties of military housing

management over from the U.S. military branches, but

64a

Appendix E

maintaining U.S. military oversight and involvement.

Typically, the military leases land to a private entity

selected through a competitive bidding process and the

entity then enters into a PPV agreement with a branch

of the Armed Forces to develop and manage the military

housing on it. Service members who reside in the housing,

which is based on their military pay grade and the

geographical location in which they serve, receive a taxfree Basic Allowance for Housing from Armed Forces to

pay their rent for the housing, which also includes utilities

and community amenities.

4. The PPV at issue for this Property is SDFH.

The United States Department of the Navy is a member

of SDFH. Following a rigorous vetting process and

contract negotiations, the due diligence for which included

inspection of a portion of the military housing inventory,

on or about August 1, 2001, the Navy and Lincoln/Clark

San Diego, LLC entered into an Operating Agreement

“Operating Agreement”) to form SDFH. The United

States Department of the Navy made a capital contribution

to this LLC which was greater than that made by the other

member and has various duties, oversight responsibilities,

and approval responsibilities relating to the military

housing in question under the terms of the Agreement. A

true and correct copy of excerpts from the Third Amended

and Restated Limited Liability Operating Agreement of

San Diego Family Housing LLC are filed under seal as

Exhibit B to my declaration. This Agreement was that

in effect at the time of the Plaintifs’ tenancy, and was

prepared jointly by both the U.S. Navy and Lincoln/Clark

San Diego LLC, the two members of SDFH.

65a

Appendix E

5. SDFH, the PPV, has primary responsibility for

managing the military housing in its jurisdiction. SDFH

includes the U.S. Navy as the “government partner”—or

the “public” member—of the PPV. SDFH is not solely a

private entity or private contractor; the U.S. Navy is a

member of SDFH itself. Further, the U.S. Navy owns the

fee to the property on which the housing is located, which

in this case, includes the Silver Strand I neighborhood at

which Plaintiffs lived, and other base housing communities

at and within the geographical footprint of Naval Base

Coronado and Naval Ampibious Base Coronado, and is

specifically within the Silver Strand Training ComplexNorth portion of Naval Amphibious Base Coronado.

6. There are other key agreements at issue that

involve the United States Navy, SDFH, LMPM, and the

Property. On or about August 1, 2001, the United States

Navy and SDFH entered a fifty-year ground lease (the

“Ground Lease”) for the Silver Strand I neighborhood

and certain other military housing communities at Naval

Base Coronado/Naval Amphibious Base Coronado and

in the San Diego area. As stated above and per the

Ground Lease, the U.S. Navy remains the fee owner

of this property at all times. A true and correct copy of

excerpts from the Third Amended and Restated Real

Estate Ground Lease, that which was in effect during the

March 2017-December 2017 portion of Plaintiffs’ tenancy

at the Property, are filed under seal as Exhibit C to my

declaration. This Ground Lease was prepared jointly by

both the U.S. Navy and SDFH, which, again, itself includes

the U.S. Navy as a member. Excerpts from the Second

Amended and Restated Real Estate Ground Lease, which

66a

Appendix E

was in effect during the August 2016 to March 2017 portion

of Plaintiffs’ tenancy, are filed under seal as Exhibit D to

my declaration.

7. Pursuant to the Operating Agreement, PPV

SDFH (again, which includes the U.S. Navy as a partner/

member) entered into a property management agreement

(“Property Management Agreement”) with Defendant

LMPM, relating to the Silver Strand I community which

encompasses the Property, as well as other housing

communities at Naval Base Coronado/Naval Amphibious

Base Coronado. The Property Management Agreement

was prepared jointly by SDFH and LMPM, with the U.S.

Navy’s specific involvement in preparing, reviewing and

approving the Agreement. SDFH was directed to enter

into this Property Management Agreement with LMPM

by the terms of the Operating Agreement. A true and

correct copy of excerpts from the Third Amended and

Restated Property Management Agreement is filed under

seal as Exhibit E to my declaration. Under the terms of

the Property Management Agreement, LMPM acts as an

agent of the PPV SDFH in performing certain property

management functions, such as property leasing and

maintenance. The Property Management Agreement

also includes a Maintenance Plan which discusses general

maintenance items for the housing including service

request procedures and priorities, routine maintenance,

make ready maintenance, annual maintenance and

preventative maintenance.

8. One of the documents which was created as part

of the Ground Lease, referenced therein in Section 11,

67a

Appendix E

is entitled “Standard Procedures for Operations and

Maintenance of Fungi-Containing Materials” (“O&M

Plan”). It is referenced within the Ground Lease as the

“Mold Management Plan.” A true and correct copy of

the O&M Plan is filed under seal as Exhibit F to my

declaration. The O&M Plan was developed by SDFH

in consultation with the United States Navy, following

the due diligence in the negotiations that led to SDFH’s

formation, and environmental assessments on a subset

of the homes which would be covered by the SDFH

agreements.

9. The O&M Plan’s purpose is to “help assure that

consistent and highest quality operations and management

systems are in place and functioning sufficiently to address

water intrusion and mold related conditions” and “verify

compliance with applicable laws, regulations, projectrelated requirements and LMH policies.” (O&M Plan at

p.l). It also outlines how SDFH and LMPM will address

future water intrusion and mold issues and the roles of

others, including its property managers, in this process.

The O&M Plan has been updated on several occasions over

the years. Notably, the O&M Plan is based in part on U.S.

Navy documents and policies, and language contained in

the O&M Plan has been carried over from specific past

and current housing policies of the U.S. Navy.

10. The O&M Plan outlines a general plan, certain

criteria that must be met, options and considerations

for response based on what is discovered at a property,

and directions for responding to tenant complaints and

service orders for a property (and specifically those as

68a

Appendix E

to mold and water intrusion in the O&M Plan). These

include, inter alia, timing of inspections or contact after

a service request (which vary depending on level of

urgency, but which levels of urgency and the timeframes

for response therein were originally dictated by the U.S.

Navy), frequency of periodic inspections, water intrusion/

mold procedures, remediation of mold, use of third party

contractors, testing/reports (although testing would only

be done by a third party vendor if they believed it needed,

as the U.S. Navy does not 27 recommend any sampling for

mold)11. Further, all third party contractors that can be

used with the military housing are vetted and approved

in advance by the U.S. Navy; SDFH and LMPM are

not allowed to use any non-Navy approved third party

contractors on the housing.

11. SDFH and LMPM are required to follow the

perameters and directives of the Property Management

Agreement’s Maintenance Plan and the Mold O&M Plan,

specifically, with respect to reports of mold, moisture or

water intrusion at a property. Defendants track and log all

service requests for a property through the Yardi system,

1. See Exhibit G to my declaration, which is a true and

correct copy of the Navy and Marine Corps Facts about Home

Mold Testing policy documents which were in effect at the time

of the Childs’ lease. These documents set forth the U.S. Navy’s

position on mold sampling, including specifically with its military

housing. Plaintiffs complain in this lawsuit that Defendants did

not test for mold at the Property adequately, but Defendants

were not authorized to do so by the U.S. Navy unless directed by

a third party vendor to do so, because such would be against the

U.S. Navy’s stated policy.

69a

Appendix E

both in work orders, and tenant memos, to document all

requests and responses. This was done with respect to

Plaintiffs’ tenancy as well. See Management Plan, 3rd

Amended Property Management Agreement, Ex. E

hereto, Ex. F, Mold O&M Plan). The Mold O&M Plan

and general Maintenance Plan consider mold and water

intrusions requests as “emergencies,” (Ex. E, 3rd Amd.

Property Management Agreement, Maintenance Plan,

p. 3rd Amended Property Management Agreement, p.40;

Ex. F, Mold O&M Plan, p.3/10). If mold is found, it must

be remediated; if small (less than 10 square feet), it can be

approved by the O&M Coordinator to be done in house; if

large (more than 30 square feet) or deemed by the O&M

Coordinator to require an outside vendor, a contractor is

required. (Id. at 3/10-7/10). If water intrusion is found that

impacts cellulose materials, three follow up visits and a

letter to the tenant following mitigating the intrusion is

required to ensure the issue is remedied; otherwise, two

visits are required. (Id. at 5/10.) Testing is not permitted

unless a third party vendor recommends it. (Id. at 8/10).

Claimed mold on a tenant’s personal property that is not

tied to a water intrusion, and routine mildew on caulk/

grout or tub enclosures, is not subject to the O&M Plan.

(Id. at 1/10). For each instance of a reported maintenance

issue by Plaintiffs during their tenancy at the Property,

Defendants responded per the plans, including specifically

with respect to reported water intrusion issues. (See Decl.

of Gail Miller, previously submitted with Defendants’

Motion to Dismiss. [ECF No. 19-3])

12. Various persons and departments within the

U.S. Navy were and are involved in an ongoing basis with

70a

Appendix E

the military housing with which SDFH and LMPM are

involved. The primary contact point with the government

partner is a Navy Business Agreements Manager

(“BAM”) from the Naval Facilities Engineering Command

(“NAVFAC”). The BAM acts like an asset manager,

managing their asset of military housing. Their duties

involve budget review, evaluation of various metrics

(including, number and types of work order, maintenance

issues, mold/water intrusion events at properties), review

of work orders and tenancy notes for the properties (they

have direct access to these), inspections of the properties,

and general oversight of the military housing. They can and

do send inquiries to SDFH and LMPM regularly based on

their reviews of their asset and the documentation they

review. There are weekly and monthly meetings SDFH

and LMPM have with NAVFAC personnel, often the

BAM, to discuss the various properties (sometimes called

the “projects”). There are also quarterly walk-throughs

of certain inventory (the housing) to view and evaluate

them. SDFH and LMPM are required to report on certain

metrics to the U.S. Navy bimonthly and monthly, including

on mold and water intrusion events at the properties. If an

issue arises with the housing which the U.S. Navy wants to

become more involved, the BAM or other Navy Housing or

NAVFAC personnel have the ability become involved with

the servicemember (tenant) directly, and/or conduct their

own inspection of the specific property at issue. If there

is a health issue reported by a tenant, or remediation is

required at a property, the U.S. Navy is informed of this

(typically the BAM). NAVFAC and the BAM oversee the

implementation of the O&M Plan.

71a

Appendix E

13. NAVFAC frequently provides directives to

SDFH and LMPM on all aspects of the military housing

which is the subject of the Operating Agreement, Ground

Lease and Property Management Agreement (including

the O&M Plan).

14. Attached to my declaration as Exhibit H, is

correspondence from United States Department of the

Navy to Defendants, dated 26 May 2020, providing specific

directions and oversight to them with respect to the

National Defense Authorization Act and sharing health,

environmental and safety inspection and testing results

as to the military housing which is the subject of the

contracts submitted as Exhibits B-E with my declaration.

This correspondence was received by Defendants in the

ordinary course of their business and is retained by

Defendants in the ordinary course of their business.

15. Attached to my declaration as Exhibit I, is

correspondence from United States Department of

the Navy to Defendants, dated 1 May 2020, providing

specific directions and oversight to them with respect to

the National Defense Authorization Act and government

access to the privatized military housing which is the

subject of the contracts submitted as Exhibits B-E with

my declaration. This correspondence was received by

Defendants in the ordinary course of their business and

is retained by Defendants in the ordinary course of their

business.

16. Attached to my declaration as Exhibit J, is

correspondence from United States Department of

72a

Appendix E

the Navy to Defendants, dated 3 April 2020, providing

specific directions and oversight to them with respect

to work order systems for maintenance and repair work

as to the military housing which is the subject of the

contracts submitted as Exhibits B-E with my declaration.

This correspondence was received by Defendants in the

ordinary course of their business and is retained by

Defendants in the ordinary course of their business.

17. Attached to my declaration as Exhibit K, is

correspondence from United States Department of the

Navy to Defendants, dated 14 August 2020, providing

specific directions and oversight to them with respect to

the National Defense Authorization Act and relocation

costs in the event of the need for tenant relocation, which

attached two further documents relating to tenant

displacement dated 30 April 2020, as to the military

housing which is the subject of the contracts submitted as

Exhibits B-E with my declaration. This correspondence

was received by Defendants in the ordinary course of their

business and is retained by Defendants in the ordinary

course of their business.

18. Exhibits H through K are but a few examples of

the directives and oversight that Defendants SDFH and

LMPM receive from the United States Navy with respect

to the military housing that is the subject of the contracts.

19. In the O&M Plan, the U.S. Navy, SDFH and

LMPM developed a plan for addressing mold and

moisture conditions in the military housing asset on an

ongoing basis. The O&M Plan took into account various

73a

Appendix E

public policy considerations, including financial (cost

of inspections, repairs, budget and fiscal restraints);

staffing (availability of employees/third party contractors

to perform inspections and repairs); housing factors

(ability to invade tenancies to inspect/repair); and

military (maintaining housing stock and morale of forces

re: housing opportunities and housing generally). The

development of the Plan was actually based on policy

analysis, and so is its execution. A main factor is cost.

Neither SDFH, LMPM nor the U.S. Navy can inspect

every home in their inventory daily, weekly or monthly; it

would be too costly as too many staff or personnel would

have to be retained and it would further disturb tenancies

and quiet enjoyment. A plan was hence developed with the

Navy’s input and approval, to allow annual inspections and

prompt responses to service requests which would allow

the issues to be identified quickly and remedied, and then

confirmed by follow ups to have been fixed. The Plan was

further designed, and executed, to allow minimal intrusion

to the service member’s and their families’ tenancies for

repairs, and for prompt responses to remedy the issues

to keep up service member morale. Various options for

response depending on the situation were created by the

U.S. Navy, SDFH and LMPM, so that each issue could

be individually assessed and addressed depending on the

situation, allowing for flexibility on cost considerations and

staffing or contracting for the performance of the repairs,

and for the convenience and morale of the military family

in their tenancy.

20. Under the terms of the Ground Lease and

Operating Agreement relating to the Property, the United

74a

Appendix E

States Navy retains ownership of the land on which the

Silver Strand I community (including the Property) is

located and conveyed ownership of the improvements

located on the land to the lessee (SDFH, of which the U.S.

Navy is a member) under the Ground Lease for the term

of the Ground Lease. Upon termination of the Ground

Lease, all improvements on the land will be abandoned in

place and become the property of the United States Navy

as the fee owner of the land.

21. The Operating Agreement and Ground Lease

relating to the Property specify that the land and housing

units on it must be used for the governmental purpose of

housing military service members and their families. The

PPV SDFH and LMPM, as the property manager, must

offer the housing units first to military service members

and their families, and then to Preferred Referrals who

work for the Department of Defense, before allowing

any civilian to lease a housing unit. The U.S. Navy must

further approve each occupant of each property at Naval

Base 27 Coronado/Naval Amphibious Base Coronado.

Mr. Childs, at the time of this lease for the Property, was

active duty in the U.S. Navy.

22. Each of the four agreements and the O&M Plan

which Defendants seek to have sealed for submission in

support of this motion for summary judgment or partial

summary judgment, are confidential and proprietary

business documents involving the Federal government.

The United States Navy is implicated in each of the

documents, as are the confidential terms of agreements

with or involving the Federal government, and/or

75a

Appendix E

confidential business and proprietary information and

financial information. On the cover page of the the Third

Amended Operating Agreement, and Second and Third

Amended Ground Lease, the documents have been

expressly deemed “Confidential” by the contracting

parties, which include the United States of America, in an

“all capitals” paragraph discussing the Confidentiality. The

Third Amended Ground Lease is further identified on each

page in all capitals as “CONTROLLED UNCLASSIFIED

INFORMATION/FOR OFFICIAL USE ONLY/

PROPRIETARY BUSINESS INFORMATION/FOIA

EXCEPTIONS 4,5, & 6.” The confidential and proprietary

content in these agreements discuss, inter alia, capital

contributions, financial information, business structures,

financial arrangements, tax issues, operating expenses,

and various management plans. These documents in

essence disclose how these businesses are structured and

run, and how they are financed, and how they execute

on their government contracts. Moreover, three of the

agreements directly involve the United States Navy

as a party, and the fourth and fifth involve a company

in which the United States Navy has a proprietary

interest. SDFH and LMPM are required to protect these

documents, and limit their disclosure. Beyond certain

persons affiliated with the Federal government, only

certain SDFH and LMPM employees and officers have

access to such documents. When said documents are

disclosed in the context of litigation, it is always under

an executed Protective Order, which exists in this case.

If these documents are disclosed freely to the public at

large, then it would allow a competitor PPV or military

property management company to obtain a significant

76a

Appendix E

advantage over SDFH and LMPM which would cause

damage to their businesses. The Federal government also

has a proprietary interest in these documents and would

not want the agreements in which they are implicated and/

or signatories, exposed to the public at large.

I swear under penalty of perjury of the laws of

the United States and the State of California that the

foregoing is true and correct and that this declaration

was executed this 23 day of October 2023, in Huntington

Beach, California.

/s/ Philip Rizzo

Philip Rizzo

77a

APPENDIX F — NAVY AND MARINE CORPS

FACTS ABOUT HOME MOLD TESTING,

FILED OCTOBER 26, 2023

NAVY AND MARINE CORPS

PUBLIC HEALTH CENTER

PREVENTION AND

PROTECTION START HERE

Facts About Home Mold Testing

Protecting Wotiter Hetilth-

Occupational Safety

and Health Administration

Mold Sampling - Should it Be Performed?

Expert organizations in assessing indoor air quality,

such as the Environmental Protection Agency (EPA)1,

Centers for Disease Control and Prevention (CDC)2,

American Industrial Hygiene Association (AIHA)3 and the

Occupational Safety and Health Administration (OSHA)4,

recommend against routine mold sampling. Looking for

evidence of water damage and visible mold growth should

78a

Appendix F

be the first step.3 If visible mold is present, sampling is

usually unnecessary and the mold should be appropriately

remediated. Results from mold sampling and the species

of mold do not change the requirement to locate and stop

the water intrusion. Finally, it is important to cleanup and

remediate the affected area(s) as necessary.

In addition, there are no health standards for what are

“acceptable” levels of mold in the indoor environment3;

so there is no health standard to which to compare mold

sampling results. Also, mold is ubiquitous; it is everywhere

- outside and inside. If mold sampling were to be done,

mold will be found most anywhere. The mere presence of

mold does not necessarily mean that there is a problem or

that occupants will be exposed or will have adverse health

effects. However, if you have visible mold or suspect you

have a mold problem, it is more important to spend time

and resources solving the moisture problem and getting

rid of the mold than on mold sampling.3

79a

Appendix F

Commercial Home Mold Test Kits - How Effective Are

They?

This image depicts a culture plate which contained malt

extract agar (MEA) that had been grown from a sample

obtained inside a home flooded by Hurricane Katrina,

and which exhibited visible mold growth on its walls and

furnishings. This is a type of black mold commonly found

in homes. (Photo by Ginger L. Chew/CDC)

Generally, home mold test kits do not provide meaningful

answers. Since mold will be found anytime such testing

is done, the home test kits would only confirm what we

already know - that mold is everywhere, both outside

and inside. Even if the home test kit analysis provides

detailed information, results can be misleading and

difficult to interpret, even for the professional. Results

can only be accurately interpreted together with a

well-thought-out sampling and analysis plan and visual

inspection.4 Additionally, Consumer Reports recommends

80a

Appendix F

to “avoid mold test kits [as we have] found them to be

unreliable.”6 They also say, “Each of the kits we tested

had significant flaws that were serious enough to earn a

Not Recommended Rating in our 2006 tests.”7

Professional Sampling: When Might It Be Necessary?

Sampling for mold should be performed by professionals

who have specific experience in developing mold sampling

protocols and conducting sampling methods as well as

interpreting sample results. While routine mold sampling

is not recommended, there are a few specific situations

when mold sampling might be useful to the professional

who has the specific experience previously mentioned.

Sampling for mold is expensive and you should have a

clear reason for doing so. In situations where visible mold

is present but there is a specific need to have the mold

identified, surface or bulk sampling might be warranted.

In specific instances, such as cases where potential health

concerns are an issue, litigation is involved or the source(s)

of contamination is unclear, sampling may be considered

as part of a building evaluation.3 If mold is suspected but

not visibly detected after a thorough inspection, then

microbial air sampling, conducted in accordance with

specific guidance documents, might reveal evidence of

mold amplification indoors or hidden reservoirs behind

walls and other building structures3 (also see references

8 - 10). If mold is being removed and there is a question

about how far the mold colonization extends, then surface

or bulk sampling, in combination with moisture readings,

might be applicable.3 Surface sampling might also be

81a

Appendix F

useful to determine if an area has been adequately cleaned

or remediated. If samples are collected, regardless of

the purpose, the results should clearly help to answer a

specific question. Sampling without a specific purpose and

a well-thought-out sampling plan greatly increases the

chances of generating data that is not usable. The presence

of mold depends on environmental conditions (e.g., heat,

light, water availability, rain, humidity, winds, time of

day, etc.), so carefully consider the seasons and ambient

weather conditions when developing the sampling plan.

This image depicts various tools professionals use for mold

sampling. (Photo by NMCPHC Public Affairs)

In situations where mold sampling might be useful, it

must be performed by professionals, such as industrial

hygienists, who are experienced in evaluating mold issues

and familiar with current guidelines and, if applicable,

local regulations, using a well-thought-out sampling plan.

Sample analysis should follow recommended analytical

methods by the AIHA, the American Conference of

Governmental Industrial Hygienists (ACGIH) or other

82a

Appendix F

professional organizations. Since laboratories vary in

experience and capability, it is advised that professionals use

an AIH A accredited laboratory (Laboratory Accreditation

Programs, LLC, Environmental Microbiology Laboratory

Accreditation Program [EMLAP]) or equivalent laboratory;

this is required when mold sampling is performed by Navy

Industrial Hygienists.3’10’11

AIHA

Laboratory Accreditation

Programs, LLC

Methods Used by Professionals to Interpret Sample

Results

The presence of mold or other biological contaminants

does not mean that occupants will have adverse health

effects or that they will even be exposed. Like any other

stressor, you must have a completed exposure pathway

to the contaminant. The mold or mold fragments, spores,

bacteria, metabolites or allergens must be produced,

released, reach the occupants and then be inhaled,

physically contacted, or ingested. Even after contact,

human response will depend on individual susceptibility

(e.g., genetic predispositions to allergens, age, health

status, etc.) and type of exposure (e.g., allergen, toxin,

infectious agent, etc.).10

A useful method for interpreting microbiological sample

results is to compare the kinds and levels of mold detected

in different environments. Usual comparisons include

83a

Appendix F

indoors versus outdoors or complaint areas versus non

complaint areas.3

Sampling for airborne molds and mold spores can indicate

whether the mix of indoor molds is representative of

the outdoor mix or whether it is different at the time of

sampling. In buildings without mold problems, the types

and concentrations of indoor airborne mold and mold

spores and those found outdoors should be similar. If the

presence of one or two types of mold are more dominant

indoors but those same types are absent outdoors, or if the

concentrations of mold and mold spores are significantly

elevated indoors over outdoors, it might indicate a

moisture problem and degraded air quality.

Also, the consistent presence of certain molds that are over

and beyond background concentrations might also indicate

a moisture problem and a potential exposure. Generally,

indoor mold types and airborne concentrations should be

similar to, and be no greater than, those found outdoors

and in non-complaint areas. Analytical results from

bulk material or surface samples can also be compared

to results of similar samples collected from reasonable

comparison areas such as other rooms inside a building.

References:

[1] U.S. Environmental Protection Agency (EPA). Mold 2016. https://

www.epa.gov/mold. Accessed October 21, 2016.

[2] Centers for Disease Control and Prevention (CDC). Mold 2010.

http://www.cdc.gov/mold. Accessed February 10,2010.

[3] American Industrial Hygiene Association (AIHA). Facts about

Mold 2016. https://www.aiha.org/publications-andresources/

84a

Appendix F

Topicsoflnterest/Hazards/Pages/Facts-About-Mold.aspx. Accessed

November 2016.

[4] The Occupational Safety and Health Administration (OSHA). A

Brief Guide to Mold in the Workplace 2013. https://www.osha.gov/

dts/shib/shibl01003.html. Accessed December 29,2016.

[5] Mold Report. Can I Use Home Mold Test Kits Instead of A Mold

Inspection? http://www.moldreport.com/home_mold_testing_kits .

html. Accessed 2016.

[6] Consumer Reports. Is Poor Indoor Air Quality Making You Sick?

Protect Yourself Against Six Hidden Hazards in Your Home 2012.

http://www.consumerreports.org/cro/magazine/2012/06/is-poorindoor-air-quality-making-you-sick/index.htm . Accessed June 2012.

[7] Consumer Reports. Five Home Repairs You Shouldn’t Ignore Use Our Expert Advice to Stop Trouble in its Tracks 2009. http://

www.consumerreports.org/cro/magazine-archive/june-2009/

home-garden/5-home-repairs-you-shouldnt-ignore/overview/5homerepairs-you-shouldnt-ignore-ov.htm. Accessed June 2009.

[8] Dillon, H. K. Field Guide for the Determination of Biological

Contaminants in Environmental Samples, 2nd edition. Fairfax:

AIHA, 2005.

[9] Prezant, B., Weekes, D. M., Miller, D. J. Recognition, Evaluation,

and Control of Indoor Mold (The Green Book). AIHA, 2008.

[10] Navy and Marine Corps Public Health Center (NMCPHC). Navy

Industrial Hygiene Field Operations Manual: Chapter 13 Indoor

Environmental Quality, http://www.med.navy.mil/sites/nmcphc/

Documents/industrial-hygiene/IHFOM CH13 Intro.pdf Accessed

July 2015.

[11] AIHA Laboratory Accreditation Programs. Environmental

Microbiology Laboratory Accreditation Program (EMLAP). http://

www.aihaaccreditedlabs.org/LabAccreditationPrograms/EMLAP/

Pages/default.aspx. Accessed November 17, 2016

85a

APPENDIX G — LETTER OF THE DEPARTMENT

OF THE NAVY HOUSING PRIVATION PARTNERS,

FILED OCTOBER 26, 2023

DEPARTMENT OF THE NAVY

NAVAL FACILITIES ENGINEERING COMMAND

1322 PATTERSON AVENUE, SE, SUITE 1000

WASHINGTON NAVY YARD, DC 20374-5065

11101

Ser AM/036

26 MAY 2020

From: Commander, Naval Facilities Engineering

Command

To:

Department of the Navy Housing Privation

Partners

Subj:

NATIONAL DEFENSE AUTHORIZATION

ACT FOR FISCAL YEAR 2020, SECTION

3014(a)“(c)(l)(C)”, 3014(a)“(d)(2)”; SHARE

HEALTH, ENVIRONMENTAL, AND

SAFTEY TEST AND INSPECTION RESULTS

WITH TENANT AND HOUSING OFFICE

Ref:

(a) National Defense Authorization Act for Fiscal

Year 2020, Public Law 116-92

1. Section 3014 of reference (a) indicates: The housing

management office is responsible for “maintaining all

test results relating to the health, environmental, and

safety condition of the housing unit and the results of

any inspection conducted by the housing management

86a

Appendix G

office, landlord, or third-party contractor for the life of the

contract relating to that housing unit.” This requirement

is codified in Title 10 United States Code Section 2891a(c)

(1)(C). Definitions applicable to reference (a) are addressed

in Section 3001 of reference (a).

2. To this end, Section 3014 of reference (a) further

indicates: “With respect to test results relating to the

health and safety condition of a housing unit, the landlord,

providing the housing unit shall - (A) not later than three

days after receiving the test results, share the results

with the tenant of the housing unit and submit the results

to the head of the installation housing management

office; and (B) include with any environmental hazard

test results a simple guide explaining those results,

preferably citing standards set forth by the Federal

Government relating to environmental hazards.” This is

codified in Title 10 United States Code Section 2891a(d)

(2) . Definitions applicable to reference (a) are addressed

in Section 3001 of reference (a).

3. The Department of the Navy expects all entities

entered or entering into agreement(s) per the Military

Housing Privatization Initiative authorities for Navy or

Marine Corps Public/Private Venture (PPV) Housing

project, as well as all service providers or contractors of

those entities, to comply with this requirement on that

Navy or Marine Corps PPV Housing Project.

4. Commander Navy Installation Command (CNIC)

and Marine Corps Installations Command (MCICOM)

installation/base housing directors will serve as the

87a

Appendix G

“head of the installation housing management office.”

Please submit tests and inspection results consistent

with reference (a), relating to the health, environment,

and safety condition of a housing unit to the tenant of the

housing unit and to the appropriate CNIC or MCICOM

installation/base housing director no later than three days

after receiving the test results.

5. Please advise if you have any concerns with or

questions on the above at this time or in the future.

6. My Point of contact for this matter is Mr. Eric Dauer,

at eric.dauerl@navy.mil; 202-685-9344.

/s/ Scott D. Forrest

SCOTT D. FORREST

By direction

Distribution:

Mr. Phillip Carpenter

Chief Operating Officer

Atlantic Marine Corps Communities, LLC

Lend Lease (US) Public Partnership Holdings, LLC

1801 W. Earl Ave

Nashville, TN 37203-2577

Mr. John Ehle President

Hunt Military Communities

980 North Michigan Ave, Suite 1150

Great Lakes, IL 60611

88a

Appendix G

Mr. Chris Hunt

Chief Executive Officer

Hunt Companies

4401 N. Mesa, Suite 201

Coventry Park West

El Paso, TX 79902-1107

Mr. Tim Byrne

President & Chief Executive Officer

Lincoln Property Company

2000 McKinney Avenue, Suite 1000

Dallas, TX 75201

Ms. Christy Pemble & Mr. Phillip Rizzo

CO-CEO’s

Lincoln Military Housing

4650 Von Karman Avenue

Newport Beach, CA 92660

Mr. Chris Williams

President

Balfour Beatty Communities

One Country View Road

Malvern, PA 19355

Mr. Alex Lewis

President

Patrician Military Housing

Louisiana Navy Family Housing, L.L.C.

8027 Jefferson Highway

Baton Rouge LA 70809

89a

Appendix G

Mr. Fran Coen Project

Director

Clark Realty Capital, L.L.C.

555 West Beech Street Suite 206

San Diego, CA 92101

Mr. Mark Schultz

South Texas Military Housing, LP

Landmark Organization, LP

5501 Balcones Drive #232

Austin, TX 78731

90a

APPENDIX H — SCOTT D. FORREST LETTER

TO THE DEPARTMENT OF THE NAVY,

FILED OCTOBER 26, 2023

DEPARTMENT OF THE NAVY

NAVAL FACILITIES ENGINEERING COMMAND

1322 PATTERSON AVENUE, SE, SUITE 1000

WASHINGTON NAVY YARD, DC 20374-5065

11101

Ser AM/028

1 May 2020

From: Commander, Naval Facilities Engineering

Command

To:

Department of the Navy Housing Privatization

Partners

Subj:

NATIONAL DEFENSE AUTHORIZATION

ACT FOR FISCAL YEAR 2020, SECTION

3014(a)“(d)(9)”; GOVERNMENT ACCESS TO

PRIVATIZED HOMES

Ref:

(a) National Defense Authorization Act for Fiscal

Year 2020, Public Law 116-92

1. Section 3014 of reference (a) indicates: “A landlord

providing a housing unit shall allow employees of the

housing management office and other officers and

employees of the Department to conduct - (A) with

the permission of the tenant of the housing unit as

appropriate, physical inspections of the housing unit; and

(B) physical inspections of any common areas maintained

91a

Appendix H

by the landlord.” Per reference (a), this requirement is

codified in Title 10 United States Code Section 2891a(d)

(9). Definitions applicable to reference (a) are addressed

in Section 3001 of reference (a).

2. The Department of the Navy (DoN) expects all entities

entered or entering into agreement(s) per the Military

Housing Privatization Initiative authorities for Navy or

Marine Corps Public/Private Venture (PPV) Housing

project, as well as all service providers or contractors of

those entities, to comply with this requirement on that

Navy or Marine Corps PPV Housing Project. This specific

subsection requires the landlord of project companies to

allow employees of the housing management office and

other employees of the Department of Defense to conduct

physical inspections of housing units (with appropriate

permissions from the tenant) and landlord-maintained

common areas.

3. This requirement is acknowledged and included

in existing Commander, Navy Installations Command

(CNIC) and Marine Corps Installation Command

(MCICOM) housing processes. Likewise, DoN expects

PPV partners to support this requirement via their

business agreements.

4. Please advise if you have any concerns with or

questions on the above at this time or in the future.

5. My Point of contact for this matter is Mr. Eric Dauer,

at eric.dauerl@navy.mil; 202-685-9344.

92a

Appendix H

s/ Scott D. Forrest

SCOTT D. FORREST

By direction

Distribution:

Mr. Phillip Carpenter

Executive General Manager of Operations

Atlantic Marine Corps Communities, LLC

Lend Lease (US) Public Partnership Holdings, LLC

1801 W. Earl Ave

Nashville, TN 37203-2577

Mr. John Ehle

President

Hunt Military Communities

980 North Michigan Ave, Suite 1150

Great Lakes, IL 60611

Mr. Chris Hunt

Chief Executive Officer

Hunt Companies

4401 N. Mesa, Suite 201

Coventry Park West

El Paso, TX 79902-1107

Mr. Tim Byrne

President & Chief Executive Officer

Lincoln Property Company

2000 McKinney Avenue, Suite 1000

Dallas, TX 75201

93a

Appendix H

Ms. Christy Pemble & Mr. Phillip Rizzo,

CO-CEO’s

Lincoln Military Housing

4650 Von Karman Avenue

Newport Beach, CA 92660

Mr. Chris Williams

President

Balfour Beatty Communities

One Country View Road

Malvern, PA 19355

Mr. Alex Lewis, President

Patrician Military Housing

Louisiana Navy Family Housing, L.L.C.

8027 Jefferson Highway

Baton Rouge LA 70809

Mr. Fran Coen

Project Director

Clark Realty Capital, L.L.C.

555 West Beech Street Suite 206

San Diego, CA 92101

Mr. Mark Schultz

outh Texas Military Housing, LP

Landmark Organization, LP

5501 Balcones Drive #232

Austin, TX 78731

94a

APPENDIX I — LETTER OF THE DEPARTMENT

OF THE NAVY, FILED OCTOBER 26, 2023

DEPARTMENT OF THE NAVY

NAVAL FACILITIES ENGINEERING COMMAND

1322 PATTERSON AVENUE, SE, SUITE 1000

WASHINGTON NAVY YARD, DC 20374-5065

111011

Ser AM/019

3 APR 2020

From: Commander, Naval Facilities Engineering

Command

To:

Distribution

Subj:

NATIONAL DEFENSE AUTHORIZATION

ACT FOR FISCAL YEAR 2020, SECTIONS

3014(a)”(d)(12)”, 3017 AND 3018; WORK

ORDER SYSTEMS

Ref:

(a) National Defense Authorization Act for

Fiscal Year 2020, Public Law 116-92

1. Section 3014 of reference (a) indicates: “A landlord

providing a housing unit shall maintain an electric work

order system that enables access by the tenant to view

work order history, status, and other relevant information,

as required by section 2892 of this title”. Per reference

(a), this requirement is codified in Title 10 United States

Code Section 2891(a) and (d)(12). Definitions applicable to

reference (a) are addressed in Section 3001 of reference

(a). The Department of the Navy (DoN) expects all entities

entered or entering into agreement(s) per the Military

95a

Appendix I

Housing Privatization Initiative authorities for a Navy

or Marine Corps Public/Private Venture (PPV) Housing

project to comply with this requirement on that Navy or

Marine Corps PPV Housing project.

2. Section 3017 of reference (a), Maintenance Work

Order System for Privatized Military Housing, adds Title

10 United States Code Section 2892, Maintenance Work

Order System for Housing Units. Section 2892, requires

“each landlord of a housing unit have an electronic work

order system to track all maintenance requests relating

to a housing unit”; and that each landlord “provide access

to the maintenance work order system of the landlord

relating the housing unit to”, “Personnel of the housing

management office at the installation”, “Personnel of

the installation and engineering command or center of

the military department” and “Such other personnel”

determined necessary. The Department of the Navy

(DoN) expects all entities entered or entering into

agreement(s) per the Military Housing Privatization

Initiative authorities for a Navy or Marine Corps Public/

Private Venture (PPV) Housing project to comply with

this requirement on that Navy or Marine Corps PPV

Housing project.

3. Section 3018 of reference (a), Access by Tenants of

Privatized Military Housing to Maintenance Work Order

System, amends Title 10 United States Code Section 2892.

Section 2892 as amended, requires each landlord of a

housing unit to provide access to the maintenance work

order system of the landlord relating to the housing unit

to the tenant of the housing unit to permit the tenant,

96a

Appendix I

at a minimum, to track the status and progress of work

orders for maintenance requests relating the housing

unit.”. The Department of the Navy (DoN) expects all

entities entered or entering into agreement(s) per the

Military Housing Privatization Initiative authorities for

a Navy or Marine Corps Public/Private Venture (PPV)

Housing project to comply with this requirement on that

Navy or Marine Corps PPV Housing project.

4. During DoN Housing PPV Partner meetings over the

past year, all private partners for Navy and Marine Corps

PPV Housing projects have indicated phone and electric

systems, as well as mobile applications, are currently

available for use by tenants for work orders (service

or maintenance calls). Naval Facilities Engineering

Command (NAVFAC) Business Agreement Managers

(BAMs) will review electric systems, as well as mobile

applications, with you to ensure compliance with the

requirements of Title 10 United States Code Section

2891(d)(12) and 2892 addressed above.

5. NAVFAC BAMs will provide you with the names of

employees of the Naval Facilities Engineering Command

that require access to your electronic work order system

for your particular project(s). NAVFAC BAMs will

also provide you with the names of the headquarters,

regional and/or installation/base housing directors with

the Navy and/or Marine Corps that require access to your

electronic work order system for your particular project(s).

Headquarters, regional and/or installation/base housing

directors with the Navy and/or Marine Corps will provide

you with the names of leadership and housing staff that

97a

Appendix I

require access to your electronic work order system for

you particular project(s).

6. The above requirements should not be confused

with that regarding “The right to be provided with a

maintenance history of the prospective housing unit before

signing a lease” included in Section 3011 of reference (a)

and codified in Title 10 United States Code Section 2890.

As you are aware, implementation plans for this particular

right in Section 2011 are currently being discussed

and coordinated across the DoD with all Housing PPV

private partners. Final guidance and expectations on this

particular right in Section 3011 will be provided as soon as

possible. Your continued review and feedback to enable

implementation of this particular right in a most fair and

appropriate manner for all concerned is appreciated.

7. Please advise if you have any concerns with or

questions on the above at this time or in the future.

8. My Point of contact for this matter is Mr. Brian Miller,

brian.miller9@navy.mil, 202-685-9343.

/s/ Scott D. Forrest

SCOTT D. FORREST

By direction

98a

Appendix I

Subj:

NATIONAL DEFENSE AUTHORIZATION ACT

FOR FISCAL YEAR 2020, SECTIONS 3014(a)”(d)

(12)”, 3017 AND 3018; WORK ORDER SYSTEMS

Mr. Phillip Carpenter

Executive General Manager of Operations

Atlantic Marine Corps Communities, LLC

Lend Lease (US) Public Partnership Holdings, LLC

1801 W. Earl Ave

Nashville, TN 37203-2577

Mr. John Ehle

President

Hunt Military Communities

980 North Michigan Ave, Suite 1150

Great Lakes, IL 60611

Mr. Chris Hunt

Chief Executive Officer

Hunt Companies

4401 N. Mesa, Suite 201

Coventry Park West

El Paso, TX 79902-1107

Mr. Tim Byrne

President & Chief Executive Officer

Lincoln Property Company

2000 McKinney Avenue, Suite 1000

Dallas, TX 75201

99a

Appendix I

Mrs. Christy Pemble & Mr. Phillip Rizzo,

CO-CEO’s

Lincoln Military Housing

4650 Von Karman Avenue

Newport Beach, CA 92660

Mr. Chris Williams

President

Balfour Beatty Communities

One Country View Road •

Malvern, PA 19355

Mr. Alex Lewis, President

Patrician Military Housing

Louisiana Navy Family Housing, L.L.C.

8027 Jefferson Highway

Baton Rouge LA 70809

Mr. Fran Coen

Project Director

Clark Realty Capital, L.L.C.

555 West Beech Street Suite 206

San Diego, CA 92101

Mr. Mark Schultz

South Texas Military Housing, LP

Landmark Organization, LP

5501 Balcones Drive #232

Austin, TX 78731

100a

APPENDIX J — SCOTT D. FORREST AND

CHARLES A. WILLIAMS LETTERS TO THE

DEPARTMENT OF THE NAVY,

FILED OCTOBER 26, 2023

DEPARTMENT OF THE NAVY

NAVAL FACILITIES ENGINEERING COMMAND

1322 PATTERSON AVENUE, SE, SUITE 1000

WASHINGTON NAVY YARD, DC 20374-5065

111011

Ser AM/059

14 AUG 2020

From: Commander, Naval Facilities Engineering

Command

To:

Department of the Navy Housing Privatization

Partners

Subj:

NATIONAL DEFENSE AUTHORIZATION ACT

FOR FISCAL YEAR 2020, SECTION 3013(a) “(e)”;

RESPONSIBILITY FOR RELOCATION COSTS

Ref:

(a) National Defense Authorization Act for Fiscal

Year 2020, Public Law 116-92

Encl:

(1) DoN Property Management Minimum

Standards for Tenant Displacement Guidelines

1. Section 3013 of reference (a), Responsibility for

Relocation Costs, created Title 10 United States Code

Section 2891, titled “Requirements relating to contracts

101a

Appendix J

for provision of housing units.” Section 2891(e) requires,

“A landlord providing a housing unit shall pay reasonable

relocation costs associated with the permanent relocation of

a tenant from the housing unit to a different housing due to

health or environmental hazards.” Further, Section 2891(e)

states, “The landlord shall pay reasonable relocation costs

and actual costs of living, including per diem, associated

with the temporary relocation of a tenant to a different

housing unit due to health or environmental hazards.”

The Department of the Navy (DoN) expects all entities

entered or entering into agreement(s) per the Military

Housing Privatization Initiative (MHPI) authorities for

a Navy or Marine Corps Public-Private Venture (PPV)

Housing project to comply with this requirement on that

Navy or Marine Corps PPV Housing project.

2. Enclosure (1) provides guidelines for the displacement

of tenants living in MHPI which include:

Displacements shall occur when repairs to be

performed in the home (including those due

to a life, health and/or safety issue) cannot be

efficiently or safely addressed while the tenant

remains in the home.

Subject to applicable state and local law and the

terms of the lease, the MHPI Company shall bear

temporary lodging costs during displacement, as

necessary.

Subject to applicable state and local law and the

terms of the lease, rent on the leased premises

102a

Appendix J

will continue to accrue and there will be no

adjustment for Basic Allowance for Housing while

the costs of temporary lodging are borne by the

MHPI Company.

In the case of displacements greater than 30

days, the MHPI Company shall offer to relocate

tenant to another habitable and comparable

home managed by the MHPI Company, if one is

available.

3. Request you ensure compliance with enclosure

(1) effective immediately. Our intent is to incorporate

enclosure (1) in the business documents for each DoN

project at the next revision of those documents. If you

have any concerns with implementation of enclosure (1),

please advise in writing no later than 28 August 2020.

4. My Point of contact for this matter is Mr. Brian Miller,

brian.miller9@navy.mil, 202-685-9343.

s/ Scott D. Forrest

Scott. D. Forrest

By direction

Distribution:

Mr. Phillip Carpenter

Chief Operating Officer

Atlantic Marine Corps Communities, LLC

Lend Lease (US) Public Partnership Holdings, LLC

1801 W. Earl Ave

103a

Appendix J

Nashville IN 37203-2577

Mr. John Ehle

President

Hunt Military Communities

980 North Michigan Ave, Suite 1150

Great Lakes, IL 60611

Mr. Chris Hunt

Chief Executive Officer

Hunt Companies

4401 N. Mesa, Suite 201

Coventry Park West

El Paso, TX 79902-1107

Mr. Tim Byrne

President & Chief Executive Officer

Lincoln Property Company

2000 McKinney Avenue, Suite 1000

Dallas, TX 75201

Ms. Christy Pemble & Mr. Phillip Rizzo

CO-CEO’s

Lincoln Military Housing

4650 Von Karman Avenue

Newport Beach, CA 92660

Mr. Chris Williams President

Balfour Beatty Communities

One Country View Road

Malvern, PA 19355

104a

Appendix J

Mr. Alex Lewis

President

Patrician Military Housing

Louisiana Navy Family Housing, L.L.C.

8027 Jefferson Highway

Baton Rouge LA 70809

Mr. Fran Coen

Project Director

Clark Realty Capital, L.L.C.

555 West Beech Street Suite 206

San Diego, CA 92101

Mr. Mark Schultz

South Texas Military Housing, LP

Landmark Organization, LP

5501 Balcones Drive #232

Austin, TX 78731

105a

Appendix J

DEPARTMENT OF THE NAVY

THE ASSISTANT SECRETARY OF THE NAVY

(ENERGY, INSTALLATIONSAND ENVIRONMENT)

1000 NAVY PENTAGON

WASHINGTON DC 20350-1000

APR 30 2020

MEMORANDUM FOR COMMANDER, NAVY

INSTALLATIONS COMMAND COMMANDING

GENERAL, MARINE CORPS INSTALLATIONS

COMMAND

COMMANDER, NAVAL FACILITIES

ENGINEERING COMMAND

SUBJECT: Criteria and Guidelines on Displacement of

Tenants in Military Housing Privatization

Initiative (MHPI) Housing

Reference: (a) Delegation of Authority to Execute

Agreements under the Provisions of

the Housing Revitalization Act of 1996

Memorandum, (27 Feb 1998)

The enclosed guidelines regarding tenant displacement

are provided for widest dissemination within your

commands. As part of on-going efforts to standardize

processes and procedures across the Services as required

by the National Defense Authorization Act for Fiscal Year

2020, these guidelines were developed by the Army in

coordination with the MHPI companies and outline the

criteria used to determine when tenants would be either

106a

Appendix J

temporarily or permanently relocated from their family

housing or unaccompanied housing. These standards do

not apply to any housing outside of the MHPI program

(i.e. private sector housing, personally owned property).

It is important to note that these standards must be

incorporated into the MHPI business agreements as they

have the potential for financial impacts. As such, each

business agreement will be revised separately with each

MHPI company.

Per reference (a), Commander, Naval Facilities

Engineering Command is directed to update the existing

MHPI business agreements with the enclosed standards

no later than 31 May 2020. Standards may be initially

enforced via a Memorandum of Agreement with the MHPI

companies until the business agreements are formally

opened at their regularly scheduled dates. The enclosed

guidelines will be reviewed and updated on an annual

basis by Commander, Navy Installations Command,

Commanding General, Marine Corps Installations

Command, and Commander, Naval Facilities Engineering

Command.

My POC for this memorandum is Mr. Jim Balocki,

james.balocki@navy.mil, (703)-695-0461.

s/ Charles A. Williams

Charles A. Williams

Enclosures:

As stated

107a

Appendix J

DoN Property Management Minimum Standards for

Tenant Displacement Guidelines

30 Apr 2020

The below standards outline the Department of the Navy

(DoN) guidelines as to when a tenant will be displaced

when they reside in Military Housing Privatization

Initiative (MHPI) provided family or unaccompanied

housing.

1. Minimum standards and/or conditions within a

housing unit that will require the displacement of a

tenant:

Displacements shall occur when repairs to be performed

in the home (including those due to a life, health and/or

safety issue) cannot be efficiently or safely addressed

while the tenant remains in the home. The MHPI Partner

will make all displacement decisions or their designee,

in consultation with the local installation Government

Housing Office, and in accordance with standards set forth

in applicable Federal, State, and local law.

Conditions for when displacement may be appropriate

include, but are not limited to:

• Lead based paint hazards that require extensive

mitigation, stabilization or abatement

• Structural, mechanical, or electrical defects in the

home that pose a threat to tenant safety

108a

Appendix J

• Any environmental condition in the home that poses

a reasonably defined health hazard

• Repairs which render the home not reasonably

occupiable during the course of the repairs, such

as repairs which prevent use of the kitchen or all

bathrooms

2. Minimum standards or entitlements that a displaced

tenant will be allowed during the displacement time

period:

Entry during Repairs: While displaced, tenants

will generally be restricted from entering their

home until the MHPI Company determines that

the necessary repairs are complete. The MHPI

company reserves the right to limit tenant access

to the home during periods of displacement that

are consistent with applicable law, to include

changing the locks on the home when necessary,

but only after notification to the tenant. The

MHPI Company shall give reasonable notice of

the displacement as the circumstances and tenant

safety permit, to include allowing the tenant

reasonable time to gather and secure personal

belongings before they vacate the premises.

Prior to commencing the repairs, and as the

circumstances and safety permit, the MHPI

company shall document, in the tenant’s and

Government Military Housing Official’s (MHO)

presence to the extent practicable, by video,

photograph or other means the tenant’s personal

109a

Appendix J

property in the work area. MHPI Company shall

also take reasonable efforts to ensure the repairs

do not damage the tenant’s property. Depending

on the nature of the repairs and safety issues

associated with those repairs, the tenant may

request and the MHPI company may allow a

tenant reentry into the home while repairs are

underway while the tenant is displaced. If reentry

is authorized during a period of displacement,

MHPI company personnel shall accompany any

tenant given access to the home. The tenant may

also request an installation Government Housing

Representative to attend, but representation is

not required. Tenants shall enter the home for

the limited circumstances stated in their request

to enter and shall not disturb any work or enter

any hazard containment area. The tenant may

not make any alterations to the home during

their entry. MHPI company shall not dispose of

any of the tenant’s personal property without the

permission of the tenant, except as permitted

by law following the displacement period if

the tenant fails to reoccupy the property or

coordinate for removal of their personal property

in a reasonable time period.

b. Temporary Lodging: Subject to applicable state

and local law and the terms of the lease, when the

MHPI company is required to displace under the

criteria above, the following temporary lodging

options shall be offered in descending order and

as availability permits:

110a

Appendix J

• A guest suite or unit managed by MHPI

company

• Department of Defense (DOD) temporary

lodging that contains adequate cooking

facilities

• Commercial hotel that contains adequate

cooking facilities

• DOD temporary lodging or a commercial hotel

without adequate cooking facilities

Temporary Lodging Costs: Subject to applicable

state and local law and the terms of the lease, the

MHPI company shall bear temporary lodging

costs during displacement of the conditions listed

below:

(1) The tenant reoccupies the home in accordance

with these guidelines

(2) The Government Installation Housing Office

has determined that the necessary repairs have

been satisfactorily made to the tenant’s home and

the house is safe and habitable; or

(3) The tenant has been offered alternative

housing either on-post or off-post in accordance

with these guidelines.

Illa

Appendix J

When necessary, the MHPI Company will offer

temporary lodging that accepts animals. Where

such lodging is not available, the MHPI Company

shall reimburse the tenant for the reasonable

costs associated with the boarding of any animals

listed on the tenant’s lease or any addendum to

it. Boarding costs for animals shall be payable to

the tenant upon the provision of receipts to the

MHPI company.

d. Rent and Allowances: Subject to applicable state

and local law and the terms of the lease, rent on

the leased premises will continue to accrue and

there will be no adjustment for Basic Allowance

for Housing while the costs of temporary lodging

are borne by the MHPI Company.

Subject to applicable state and local law and the

terms of the lease, when the MHPI Company

places a tenant in temporary lodging as a result

of displacement, the tenant shall be entitled to

the following allowances that are paid for by the

MHPI company:

•

In all cases where a tenant is placed in

temporary lodging, tenants and their

authorized dependents will be entitled to

the U.S. General Services Administration

(GSA) or DOD incidentals per diem rate for

the location of their leased premises for the

period of their displacement.

112a

Appendix J

In the case where a tenant is placed in DOD

temporary lodging or a commercial hotel

that contains adequate cooking facilities,

tenants and their authorized dependents will

be entitled to the GSA or DOD incidentals

per diem rate for the location of their leased

premises for the period of their displacement.

In the case where a tenant is placed in DOD

temporary lodging or a commercial hotel that

does not contain adequate cooking facilities,

tenant and their authorized dependents will

be entitled to the GSA or DOD meals and

incidentals per diem rate for the location of

their leased premises for the period of their

displacement.

A tenant may elect to move into alternate

temporary lodging outside of what is offered

by the MHPI Company, such as staying

with family or in a recreational vehicle. If

elected, the tenant and their authorized

dependents will be entitled to the GSA

or DOD incidentals per diem rate for the

location of their leased premises during the

period of their displacement.

Tenants will only be authorized displacement

entitlements if the tenant has fully complied

with the terms of the lease and the

displacement is due to a maintenance issue

that is not the fault of the tenant, tenant’s

113a

Appendix J

spouse, dependents, guests or invitees

(collectively “Tenant Parties”).

The MH PI Company shall notify the tenant of the

conditions of their displacement, the temporary

lodging location and the tenant via signature will

acknowledge their allowances in writing, and

those conditions. This written notification shall

contain at a minimum:

•

The general reason(s) for displacement and

the initial schedule to remedy the life, health

or safety issue

•

The location of the temporary lodging and a

statement that the costs of such lodging will

be borne by the MHPI company

•

The per diem entitlement, as applicable

•

That the tenant may not access the home

during the period of repairs, and that the

locks will be altered or changed, if applicable

•

The process by which the tenant can request

access to the home during repairs and the

conditions of that access

•

That the MHPI company will keep tenant

apprised of the progress of the repairs, any

changes to the schedule to repairs, and will

notify tenant promptly when the home is

available for re-occupancy

114a

Appendix J

Permanent Relocation: In the case of

displacements greater than 30 days, the MHPI

Company shall offer to relocate tenant to another

habitable and comparable home managed by

MHPI company, if one is available. If the tenant

accepts the move to the home managed by MHPI

Company, the current lease term will terminate

without penalty and the MHPI Company shall

continue to pay the costs of temporary lodging

until the tenant is relocated to the new home, as

well as the reasonable cost of moving the tenant’s

household goods to the new home. If tenant

refuses to relocate to the new home offered by

MHPI Company within 30 days, temporary

lodging and per diem entitlements will cease,

and no household goods moving allowance will

accrue.

At any time during displacement, and in

consultation with the installation Government

Housing Office, the MHPI Company may

permanently relocate a displaced tenant to a

comparable home in the same school district

based on service member rank and home size

eligibility. The MHPI Company shall continue to

pay the costs of temporary lodging and per diem

for a period of no longer than 30 days, and no

longer than the expiration of the tenant’s existing

lease in any event, until the tenant is relocated

to the new home, as well as the reasonable cost

for moving the tenant’s household goods.

115a

Appendix J

If the MHPI Company is unable to offer a home

managed by MHPI Company, tenant may elect

to move to a home not managed by the MHPI

Company within the “Housing Market Area” for

that installation, generally defined as a location

within 20 miles of the installation. The MHPI

Company shall continue to pay the costs of

temporary lodging and per diem for a period of

no longer than 30 days, and no longer than the

expiration of the tenant’s existing lease in any

event, until the tenant is relocated to the new

home, as well as the reasonable cost for moving

the tenant’s household goods. Tenants will only

be entitled to relocation entitlements if the tenant

has fully complied with the terms of the lease, the

relocation is due to a maintenance issue not the

fault of the Tenant Parties, and the tenant has

agreed to reside again in PPV Housing.

116a

APPENDIX K — PLAINTIFF’S FIRST AMENDED

COMPLAINT FOR DAMAGES AND JURY TRIAL

DEMAND OF THE SUPERIOR COURT OF

CALIFORNIA FOR THE COUNTY OF SAN DIEGO CENTRAL DIVISION, FILED DECEMBER 5, 2019

SUPERIOR COURT OF CALIFORNIA

FOR THE COUNTY OF SAN DIEGO CENTRAL DIVISION

Case No.: 37-2019-00022759-CU-BC-CTL

LENA CHILDS, AN INDIVIDUAL;

DONALD CHILDS, AN INDIVIDUAL;

T. CHILDS, A MINOR, BY AND THROUGH HER

GUARDIAN AD LITEM, LENA CHILDS; HER

GUARDIAN AD LITEM, LENA CHILDS; A.

CHILDS, A MINOR, BY AND THROUGH HER

GUARDIAN AD LITEM, LENA CHILDS,

Plaintiff,

vs.

SAN DIEGO FAMILY HOUSING, LLC,

A CALIFORNIA LIMITED LIABILITY

CORPORATION; LINCOLN MILITARY PROPERTY

MANAGEMENT LP, A DELAWARE LIMITED

PARTNERSHIP; INDEPTH CORPORATION,

A CALIFORNIA CORPORATION; AND

DOES 1 THROUGH 25, INCLUSIVE,

Defendants.

Filed December 5,2019

117a

Appendix K

PLAINTIFF’S FIRST AMENDED COMPLAINT

FOR DAMAGES AND JURY TRIAL DEMAND:

(1) NEGLIGENCE

(2) PRIVATE NUISANCE

(3) BREACH OF CONTRACT

(4) BREACH OF IMPLIED WARRANTY OF

HABITABILITY

(5) BREACH OF IMPLIED COVENANT OF

PEACEFUL AND QUIET ENJOYMENT

(6) CONSTRUCTIVE EVICTION

UNLIMITED CIVIL CASE

JURY DEMANDED

Plaintiffs LENA CHILDS, DONALD CHILDS,

T. CHILDS, a minor, by and through her guardian ad

litem, LENA CHILDS, and A. CHILDS, a minor, by

and through her guardian ad litem, LENA CHILDS,

respectfully file this Complaint, demand a jury trial, and

allege as follows:

Parties to the Civil Action

1. Plaintiff, LENA CHILDS, is an adult natural

person who is and was at all times relevant hereto, a

resident of San Diego County, California.

118a

Appendix K

2. Plaintiff, DONALD CHILDS, is an adult natural

person who is and was at all times relevant hereto, a

resident of San Diego County, California.

3. Plaintiff, T. CHILDS, a minor, represented by

her guardian ad litem, LENA CHILDS, is and was at all

times relevant hereto, a resident of San Diego County,

California.

4. Plaintiff, A. CHILDS, a minor, represented by

her guardian ad litem, LENA CHILDS, is and was at all

times relevant hereto, a resident of San Diego County,

California.

5. Plaintiffs are informed and believe, and thereon

allege that defendants SAN DIEGO FAMILY HOUSING

LLC, a California Limited Liability Corporation, and

LINCOLN MILITARY PROPERTY MANAGEMENT

LP, a Delaware Limited Partnership, (all parties

collectively “Defendants”), at all times material to

this Complaint, owned, maintained, controlled, and/or

managed that certain real property located at 1333 Saipan

Rd, San Diego, CA 92118 (herein (“PROPERTY”).

6. Plaintiffs are informed and believe, and thereon

allege that defendant INDEPTH CORPORATION, a

California Corporation located at 10954 Via Frontera in

San Diego County, at all times material to this Complaint,

performed inadequate and deficient mold remediation

services on the PROPERTY.

7. The PROPERTY is and at all times herein

mentioned, was located in this judicial district.

119a

Appendix K

8. Plaintiffs are informed and believe, and thereon

allege that SAN DIEGO FAMILY HOUSING LLC is

a California Limited Liability Corporation that has its

princip

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