Preview
VINCENT J. BARTOLOTTA, JR., ESQ. (SBN 055139)
KAREN R. FROSTROM, ESQ. (SBN 207044)
THORSNES BARTOLOTTA McGUIRE LLP
2550 Fifth Avenue, 11" Floor
San Diego, California 92103
Tel: (619) 236-9363 Fax: (619) 236-9653
Attorneys for Plaintiffs Nina Peschcke-Koedt, Emilio Diaz,
Dan Slanker, Dawn Slanker, William Michael Fleming,
Edward Stancil, Jedrick Humphries, Jonathan Reid, Tina
Reid, and John Chambers
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10 FRANCESCA FAMBROUGH, CHRIS Case No.: 17CIV05387
TAVENNER, NINA PESCHCKE-KOEDT,
11 EMILIO DIAZ, DAN SLANKER, DAWN
SLANKER, BRENDA SMITH, THUMPER
o Ben 12 SMITH, PLAINTIFFS-INTERVENORS’ REPLY BRIEF
IN SUPPORT OF MOTION FOR AWARD OF
13 Plaintiffs, ATTORNEYS’ FEES AND COSTS
14 Vv.
15 REDWOOD CITY, Date: January 19, 2024
Time: 9:00 a.m.
16 Defendant. Dept: 2
Judge: Hon. Marie S. Weiner
17
ALISON MADDEN, WILLIAM MICHAEL
18 FLEMING, EDWARD STANCIL,
JEDRICK HUMPHRIES, ALBA LUCIA
19 DIAZ, JONATHAN REID, TINA REID,
AND JOHN CHAMBERS,
20
Plaintiffs-Intervenors,
21
Vv.
22
CITY OF REDWOOD CITY,
23
Defendant.
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1568528v1 PLAINTIFFS-INTERVENORS’ REPLY BRIEF IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS’
FEES AND COSTS
“[T]he lodestar is the basic fee for comparable legal services in the community. Ketchum v.
Moses, 24 Cal.4" 1122, 1132 (2001). Under the lodestar theory, the fee may be adjusted based on
factors including “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in
presenting them, (3) the extent to which the nature of the litigation precluded other employment by
the attorneys, (4) the contingent nature of the fee award.” Id. The instant case involved a significant
amount of novelty including interpretation of the CRAL and the uphill battle that is inverse
condemnation. The issues in the case were thoroughly litigated and required significant skill. This
was an extremely time-consuming case. Should the court choose to apply a contingency fee,
Plaintiffs request a lodestar modifier.
10 Avenida San Juan Partnership v. City of San Clemente, 201 Cal.App.4"" 1256, 1282 (2011)
11 does not contain the holding that the city contends. Rather than prohibit reimbursement of a
Ben 12 contingent lawyer’s fees, the case held that there could not be recovery of in-house counsel’s time
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13 because he had not been paid outside of his regular salary. Those facts are inapplicable here. None of
a 14 the Plaintiffs have in-house lawyers.
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15 The city misrepresents the amount of the judgment. Plaintiffs were awarded $345,873. (Exh.
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ms 16 “A” hereto.)
17 If the Court agrees with the city that Plaintiffs are limited to a contingency recovery, none of
18 the line-item challenges are relevant. If, however, the Court awards Plaintiff for the time expended,
19 it should award all reasonable amounts related to the inverse condemnation case, as was held in the
20 Red Mountain case cited by the city. The entire case, regardless of what cause of action, was to
21 challenge the city’s flawed efforts to close Docktown. While the Court may have held that the
22 CRAL does not apply until a tenant moves out, Plaintiffs did not “lose” on that cause of action.
23 Additionally, the city cites no authority that Plaintiffs are not entitled to be reimbursed for work
24 done for Plaintiffs who settled.
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1568528v1 PLAINTIFFS-INTERVENORS’ REPLY BRIEF IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS’
FEES AND COSTS
For the foregoing reasons, Plaintiffs request an award of attorneys’ fees as requested.
Dated: January 10, 2024 THORSNES BARTOLOTTA McGUIRE LLP
By: man
~ VINCENT J. BARTOLOTTA, JR., ESQ.
KAREN R. FROSTROM, ESQ.
Attorneys for Plaintiffs and Plaintiffs-Intervenors
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1568528v1 PLAINTIFFS-INTERVENORS’ REPLY BRIEF IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS’
FEES AND COSTS
EXHIBIT "A"
FILED
SAN MATEO COUNTY
a p
Cpiet ied perior Co
By
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
FRANCESCA FAMBROUGH, et al., Civil No. 17CIV05387
Plaintiffs, Assigned for All Purposes to
Hon. Marie S. Weiner, Dept. 2
vs.
JUDGMENT AFTER PHASE ONE
REDWOOD CITY, COURT TRIAL AND PHASE TWO
JURY TRIAL
Defendant.
ALLISON MADDEN; WILLIAM
MICHAEL FLEMING; EDWARD
STANCIL; JEDRICK HUMPHRIES;
ALBA LUCIA DIAZ; JONATHAN
REID; TINA REID; and JOHN
CHAMBERS,
Plaintiffs in Intervention,
)
vs.
CITY OF REDWOOD CITY,
Defendant.
/
Plaintiffs and Plaintiffs in Intervention alleged two causes of action, namely,
(1) violation of and/or request for recovery under the California Relocation Assistance
Law; and (2) Inverse Condemnation. The case proceeded in two phases: Phase One
1
Court Trial of the CRLA claim and the determination of liability for Inverse
Condemnation; and the Phase Two Jury Trial on the issue of just compensation for
Inverse Condemnation.
On August 2, 2021, the Phase One Court Trial commenced in Department 2 of
this Court before the Honorable Marie S. Weiner. Karen Frostrom of Thorsnes Bartolotta
McGuire LLP appeared on behalf of all Plaintiffs and Plaintiffs in Intervention except
Alison Madden; Albert Tong, Kevin Siegel and Maxwell Blum of Burke Williams &
Sorensen LLP appeared on behalf of Defendant Redwood City; and Alison Madden
appeared on. behalf of herself as an Intervenor Plaintiff. The presentation of evidence
concluded on September 20, 2021. Oral Closing Arguments were presented on
September 27, 2021. Thereafter counsel and the parties presented Written Closing
Arguments, concluding November 18, 2021. Thereafter, the Court issued a Tentative
Decision finding liability for inverse condemnation, then a Proposed Statement of
Decision as to which the parties had the opportunity to file Objections, and then a “Final”
Statement of Decision on the Phase One Court Trial.
The “Final” Statement of Decision on Phase One Court Trial is attached hereto
and incorporated by reference.
Several Plaintiffs and Plaintiffs in Intervention entered into settlements with
Defendant, both before and after the Phase One Court Trial Decision, and their
voluntarily dismissed claims are thus not reflecting in this Judgment.
A Phase Two Jury Trial commenced on October 5, 2023 for adjudication of
damages for inverse condemnation in Department 2 of this Court. Karen Frostrom of
Thorsnes Bartolotia McGuire LLP appeared on behalf of Plaintiffs and Plaintiffs in
Intervention; and Kevin Siegel and Albert Tong of Burke Williams & Sorensen LLP
appeared on behalf of Defendant City of Redwood City. A Jury of 12 persons plus two
alternate jurors were empaneled and sworn. Document and witness evidence was
presented. Oral Closing Arguments were presented on October 12, 2023
On October 12, 2023, the jury rendered Special Verdicts, which are attached
hereto and incorporated by reference. Upon polling, each and all of the Special Verdicts
were found unanimously.
The Jury found that just compensation at fair market value of the property taken
by Defendant as to each Plaintiff and Plaintiff in Intervention is as follows.
1 What was the fair market value of the property taken from Plaintiff
John Chambers? $79,283
2 What was the fair market value of the property taken from Plaintiff
Jed Humphries? $56,090
3 What was the fair market value of the property taken from Plaintiff
Nina Peschcke-Koedt? $93,950
4 What was the fair market value of the property taken from Plaintiff
Edward Stancil relating to Whisper? $82,950
5 What was the fair market value of the property taken from Plaintiff
Edward Stancil relating to Fantasy? $33,600
IT IS HEREBY ADJUDGED, ORDERED and DECREED as follows:
The Court finds that Plaintiff Nina Peschcke-Koedt and Plaintiffs in Intervention
Edward Stancil, Jed Humphries, and John Chambers have proven their second cause of
action for inverse condemnation by a preponderance of the evidence ‘against Defendant
City of Redwood City.
Plaintiffs and Plaintiffs in Intervention failed to prove by a preponderance of the
evidence their first cause of action for monetary benefits, compensation, and
reimbursement of expenses under the California Relocation Act, Government Code
Section 7260 et seq., and/or under federal Uniform Relocation Assistance statutes, 42
U.S.C. §4620 et seq., as the claim is procedurally defective for failure to serve a
prelitigation government claim in conformity with the Tequirements of California
Government Code Section 915.
Nina Péschcek-Koedt is awarded $93,950.00 against City of Redwood City.
Edward Stancil is awarded $116,550.00 against City of Redwood City.
Jed Humphries is awarded $56,090.00 against City of Redwood City. -
John Chambers is awarded $79,283.00 against City of Redwood City.
Plaintiffs and Plaintiffs in Intervention are the prevailing parties, and awarded
statutory costs upon timely service and filing of Memorandum of Costs; and awarded
reasonable attorney’s fees, appraisal costs, and any other reasonable disbursements and
expenses pursuant to Code of Civil Procedure Section 1036, upon timely service and
filing of a Motion for Award of Fees and Costs.
Pursuant to Code of Civil Procedure Sections 1268.310 et seq., this Judgment
shall draw interest from the date of entry of Judgment at the rate of 10% per annum,
compounded quarterly 6 1268.360); except that any and all interest accrued as to the
judgment of each Plaintiff or Plaintiff in Intervention shall be completely offset while
that Plaintiff or Plaintiff in Intervention remains living on (and does not move out from)
their subject vessel at Docktown Marina in Redwood City, California pursuant to CCP
Section 1268.330.
DATED: _ October 19, 2023
Wf
HON. MARIE S. WEINER
JUDGE OF THE SUPERIOR COURT
“FILED
SAN MATEO col
4 oo
023
aSuperior Coy
EPO BRC
SUPERIOR COURT OF THE STATE OF CALIFOR
COUNTY-OF SAN MATEO
FRANCESCA FAMBROUGH, et al., Civil No. 17CIV 05387
Plaintiffs, Assigned for All Purposes to
Hon. Marie S. Weiner, Dept. 2
vs.
FINAL STATEMENT OF DECISION
REDWOOD CITY, AFTER PHASE ONE COURT
TRIAL
” Defendant.
ALLISON MADDEN; WILLIAM
MICHAEL FLEMING; EDWARD
STANCIL; JEDRICK HUMPHRIES;
ALBA LUCIA DIAZ; JONATHAN
REID; TINA REID; and JOHN
CHAMBERS,
Plaintiffs in Intervention,
vs.
CITY OF REDWOOD CITY,
Defendant.
/
Pursuant to Case Management Order #17 filed September 17, 2020 the Court
noted that the Plaintiffs and Plaintiffs in Intervention had two causes of action, namely .
(1) violation of and/or request for recovery under the California Relocation Assistance
Law; and (2) Inverse Condemnation.
Aclaim for inverse condemnationis adjudicated in two parts: first, a
court trial of whether there is a “taking”, and if'so, second, a jury trial of
damages. The statutory claim under the first cause of action is subjectto
court trial. Accordingly, the trial of the claims is BIFURCATED, such
that all claims and defenses subject to Court Trial shall be adjudicated first
in a single Phase One Court Trial. If Plaintiffs prevail on the inverse
condemnation claim, a Phase Two Jury Trial will be scheduled thereafter
for adjudication _ damages phase.
On August 2, 2021, the Phase One Court Trial commenced in Department 2 of
this Court before the Honorable Marie S. Weiner. Karen Frostrom of Thorsnes Bartolotta
McGuire LLP appeared on behalf of all Plaintiffs and Plaintiffs in Intervention except
Madden; Albert Tong, Kevin Siegel and Maxwell Blum of Burke Williams & Sorensen
LLP appeared on behalf of Defendant Redwood City; and Alison Madden appeared on
behalf of herselfas an Intervenor Plaintiff. The presentation of evidence concluded on
September 20, 2021. Oral Closing Arguments were presented on September 27, 2021.
Thereafter counsel and the parties presented Written Closing Arguments, concluding
November 18, 2021.
Upon due ‘consideration of the briefs, evidence presented including the
Administrative Record in 17CIV04680, the arguments of counsel, the Court issued a
Tentative Decision after Court Trial. The parties requested a Statement of Decision. A
Proposed Statement of a was issued; and the parties had the opportunity to filed
Objections thereto.
Plaintiffs Allison Madden, William Fleming (by his heirs after death), and
Jonathan and Tina Reid have now settled with Defendant and dismissed their claims.
IT IS HEREBY DECIDED, ORDERED AND ADJUDGED, as the Court’s Final
Statement of Decision after Phase One Court Trial as follows:
The first cause of action for monetary benefits, compensation, and reimbursement
of expenses under the California Relocation Act, Government Code Section 7260 et seq.,
and/or under federal Uniform Relocation Assistance statutes, 42 U.S.C. §4620 et seq., is.
DENIED AND DISMISSED WITHOUT PREJUDICE as procedurally defective for
failure to serve a prelitigation government claim in conformity with the requirements of
California Government Code Section 915.
The Court finds that Plaintiffs and Plaintiffs in Intervention Nina Peschoek-Koedt,
Emilio Diaz, Dan Slanker, Dawn Slanker, Edward Stancil, Jedrick Humphries, and John
Chambers have proven their second. cause of action for inverse condemnation by a
preponderance of the evidence against Defendant City of Redwood City, as to liability.
A Phase Two Jury Trialis scheduledto commence on October 5, 2023 for
adjudication of damages for inverse condemnation. The claim-for award of attorneys’
fees will be briefed and addressed after determination of damages in the Phase Two Jury
Trial.
THE COURT FINDS, as its Final Statement of Decision for Phase One Court
Trial, as follows:
The Parties
Several Plaintiffs and Plaintiffs in Intervention resolved and dismissed their
claims asserted in this lawsuit: and the remaining Plaintiffs and Plaintiffs in Intervention
are now: Nina Peschcek-Koedt, Emilio Diaz, Dan Slanker, Dawn Slanker, Edward
Stancil, Jedrick Humphries, and John Chambers. The operative complaints are the First
Amended Complaint filed February 27, 2018 (as to which class certification was denied,
and the claim for declaratory relief dismissed) and the Complaint in Intervention filed
January 10, 2020. The only Defendant is City of Redwood City.
Prelitigation Claims and Administrative Exhaustion
Despite any dispute by Defendant, the evidence demonstrates, and it is not subject
to legitimate dispute, that Plaintiffs and Plaintiffs in Intervention made claims under the
California Relocation Assistance Act, Government Code Sections 7260 et seq.,
(hereinafter “Relocation Act”), and that Plaintiffs and Plaintiffs in Intervention filed
appeals with Defendant Redwood City (o7 its authorized agents) and sought review of
denial of benefits. Accordingly, Plaintiffs and Plaintiffs in Intervention exhausted
administrative remedies under the Relocation Act ~ particularly as Defendant refused to
provide any benefits under the Relocation Act, nor establish an administrative procedure
thereunder.
Yet, Plaintiffs and Plaintiffs in Intervention brought claims in this lawsuit for
monetary compensation and monetary benefits under the Relocation Act (and the related
federal statute). Defendant Redwood City asserts failure to comply with Government
4
Code Section 905, i.e., failure to submit a prelitigation government claim. The Court of
Appeal in Baiza v. Southgate Recreation and Park District (1976) 59 Cal.App.3d 669,
held that where a displaced person is secking monetary benefits under the Relocation Act
against a public entity, that person must exhaust administrative remedies under the
Relocation Act and comply with the prelitigation government claim statute under the
Government Claims Act, Government Code Section 905 et seg. “The two statutes,
general and specific, are not in conflict and must therefore be harmonized and applied
together.” Baiza, atp. 64 fn. 4. Defendant asserts that Plaintiffs and Plaintiffs in
Intervention failed to submit any government claim under Section 905, and thus have no
right to relief nor the Court jurisdiction to grant relief under the Relocation Act.
It is undisputed that no prelitigation government claim is required for Plaintiffs’
and Plaintiffs in Intervention’s claim for inverse condemnation. Government Code
§905.1.
Plaintiffs and Plaintiffs in Intervention attempt to skirt the issue by declaring that
they are only seeking to compel Defendant to adopt and implement a Relocation Act
“plan”. Such an assertion raised for the first time at the Pretrial Conference is belied by
the allegations of the First ‘Amended Complaint and the Complaint in Intervention, which
explicitly seek monetary benefits and compensation.
The inquiry is whether the written “claims” made by Plaintiffs and Plaintiffs in
Intervention to Defendant demanding monetary benefits under the Relocation Act, are
sufficient to constitute a “claim” under the Government Claim Act.
At the very least, the prelitigation governtnent claim statutory requirement is
subject
to the doctrine of substantial compliance. In that regard, there is substantial
compliance where each of the elements of a claim have been complied with, even if
5
defectively; but there is not substantial compliance where thereis no effort to comply
with the requirements of a government claim at all. Santee v. Santa Clara County Office
of Education (1990) 220 Cal.App.3d 702, 713.
“The doctrine of substantial compliance requires no more than that the
governmental entity be apprised of the claim, have an opportunity to investigate and
settle it and incur no prejudice as a result of plaintiff's failure to strictly comply with the
claims act.’ [Citation.]” Johnson v. San Diego Unified School District (199) 217
Cal.App3d 692, 700; see also Santes, at p.713.
As the Supreme Court stated in City of San Jose v. Superior Court (1974) 12
Cal.3d 447, 456-457: “[W]e conclude that to gauge the sufficiency of a particular claim,
Two tests shall be applied: Is there Some compliance with All of the statutory
requirements; and, if so, is there compliance sufficient to constitute Substantial
compliance?” The elements of a prelitigation government claim are set forth in
Government Code Section 910.
On the other hand, if the written communication makes it clear that it is a claim
for compensation against the public entity and that failure to satisfy the demand will
result in the filing of a lawsuit, then the public entity has an affirmative obligation under
Government Code Section 911 to notify the claimant of any deficiencies, defect or
omission in their claim as presented. Otherwise “any.defense as to sufficiency of the
claim” is “waived” by the defendant. The evidence is that there was no such Section 911
notification by Defendant to any of the Plaintiffs or Plaintiffs in Intervention.
_ Upon review of the evidence, the Court finds that Plaintiffs and Plaintiffs in
Intervention did comply or did substantially comply with the prelitigation government .
claim requirement of Government Code Sections 905 and 910.
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But that is not enough. The written claim must also be delivered or mailed to the
public entity in conformity with the requirements of Section 915. Substantial compliance
with Section 915 is not legally sufficient. DiCampli-Mintz v. County of Santa Clara
(2012) 55 Cal.4® 983. That statute requires that the written claims be presented by
“delivering it to the clerk, secretary or auditor” of the public entity, or “mailing it to the
clerk, secretary, auditor, or to the governing body at its principal office”. The Supreme
Court held in Di mpli-Mintz ounty o nt ra (2012) 55 Cal.4" 983 that the
statute is to be applied literally and strictly, in that it must be delivered or mailed to the
clerk, secretary, auditor, or governing body itself — and not someone else. The evidence
is undisputed that none of the Plaintiffs or Plaintiffs in intervention presented their
written “claim” to the City Clerk of Redwood City or to the City Council of Redwood
City directly.
Alternatively, the statute provides that presentation is fulfilled if the claim “is
actually received by the clerk, secretary, auditor or board of the local public entity.”
Govt. Code §915(e)(1). In our case, Plaintiffs and Plaintiffs in Intervention failed to
present any evidence that their claims were forwarded by the addressees to the City Clerk
or to the City Council or its Chairperson. There is no evidence that these authorized
persons/entities “actually received” the claims of Plaintiffs and Plaintiffs in Intervention.
Accordingly, the first cause of action for violation of the Relocation Act is
DENIED WITHOUT PREJUDICE for failure to coniply with the Government Claims
Act, Government Code Section 905 et seq, and specifically service under Section 915,.
prior to the filing ofthis lawsuit.
Premature Claims under Relocation Act
The Relocation Act is clear that monetary benefits thereunder are not triggered
until the resident actually moves out. This lawsuit for ‘monetary benefits under the
Relocation Act was filed by Plaintiffs and Plaintiffs in Intervention before they moved
out of the Docktown Marina or out of their residential boats berthed there — indeed they
still have not moved out,
Under the Relocation. Ack a “displaced person” is defined as “any person who
moves from real property, or who moves his or her personal property from real
property”. Thus, the person has to move out in order to triggered monetary recovery
under the Relocation Act.
“The operative date for eligtbilty under CRAL is the moving date ofthe
displaced person.” Superior Strut & Hanger Co. v, Port of Oakland (1977) 72
Cal. App.3d 987, 999; Kong v. City of Hwaiian Gardens Redevelopment Agency (2002)
101 Cal.App.4" 1317, 1326; see also Bi-Rite Meat & Provisions Co. v. City of, Hawaiian
Gardens Redevelopment Agency (2007) 156 Cal.App.4" 1419, 1431. “It is the moving
date of the displaced person which determines his eligibility under the mandatory
relocation assistance provision”. Albright v. State of California (1979) 101 Cal.App.3d.
14, 21.
Accordingly, there appears no procedural barrier for Plaintiffs and Plaintiffs in
Intervenion to proceed with timely filing a prelitigation government claim under the
Government Claim Act, asserting violation of the Relocation Act and seeking remedies
thereunder for monetary benef and compensation, after they move out.
Inverse Condemnation
Overview
The Court finds that Plaintiffs and Plaintiffs in Intervention have proven their
cause of action for inverse condemnation against Defendant Redwood City.
This dispute arises from the following situation: For decades, people have been
allowed to have live aboard boats! and houseboats” at the Docktown Marina in Redwood
City. Docktown Marina has/had two types of agreements: (i) berthing license
agreements for non-live-aboard vessels, and (ii) live-aboard leases. In March 2013
Redwood City took over the management of the Docktown Marina. A lawsuit was filed
in 2015 by Citizens for Public Trust alleging that the waterway at the Docktown Marina
was subjectto the Public Trust, and soughtto terminate all residential use of the
Docktown Marina. Pursuant to settlement of that lawsuit — of which the Plaintiffs and
Plaintiffs in Intervention were not parties — the Docktown Plan was adopted by Redwood
City in December 2016, establishing a plan to displace and remove all residential use of
Docktown, including the requirement that vessels be physically moved (or subject owners
to nuisance abatement) and providing certain benefits if residents cooperated in leaving.
Plaintiffs and Plaintiffs in Intervention refuse to voluntarily leave.
This case presents the unusual situation of residential boats in leased marina slips.
The lease is not for residing in an immovable structure; rather the tenant owns the
immovable structure. By the inverse condemnation conduct of Redwood City,
1 A live-aboard boat is a boat that is used or capable of being used for active self-
propelled navigation, that is moored for an extended period, and that is used during the
period of mooring as a private principal place of residence.
2 A houseboat is a boat that is used for a residential or other non-water-oriented
purpose and that is not used for active navigation.
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tenants have lost the use of basic amenities and habitability of the marina itself? while
leasing the dock, and thereafter by their eviction, will lose or have lost their houseboat
property.
Even if they could be moved by towing, there is no place in the area
for them to
go — there are no available marina slips for live-aboard boats or houseboats. Redwood
City had the opportunity to mitigate the situation by providing live-aboard slips in
another marina in Redwood City, and even made representations to Docktown Marina
residents that such a move-would be available, but instead those few available slips were
given to non-Docktown persons.
Indeed, evidence was presented
that Redwood City paid $400,000 to the Port of
Redwood City for improvements to its Municipal Marina, thus an eye to having the
Docktown
Marina tenants move there, but then did nothing to facilitate such
a move —
and Port denied any requests by Plaintiffs and Plaintiffs in Intervention to move there.
The evidence is that there are no alternatives in the geographic area.
Applicable Law
“Our federal and state Constitutions proacsibe the governmental taking of private
property without just eofapensation. (U.S. Const. Amend. V, Cal Const. art, 1 §19.)”
Kong v. City of Hawaiian Gardens ‘Redevelopment Agency (2002) 108 Cal:App.4" 1028,
1038. Such a “taking”, for which just compensation is required, may be of real property
or of personal property. Baldwin Park Redevelopment Agency v. Irving (1984) 156
Cal.App.3d 428, 435; City of Needles v. Griswold (1992) 6 Cal.App.4 1881, 1891
3 An agreement for rental or lease of space on the water where.a vessel may be
docked, i.e., a boat slip or berth, in a marina is “real property”,-as water in its natural state
is part of the land. California Prectice Guide Landlord Tenant §7:79.
“While the typical taking occurs when the government acts to condemn property
in the exercise of its power of eminent domain, the entire doctrine of inverse
‘condemnation is predicated on the proposition that a taking may occur without such
formal proceedings.’ [Citation.J City of ‘Needles,'6 Cal.App.4" at p. 1889.
Benefits under the Relocation Act are separate from the just compensation due for
inverse condemnation or eminent domain under the federal and state Constitutions.* .
Besty v. Imperial Inigation District 1986) 186 Cal.App.3d 897, 902.
To state
a cause of action for inverse condemnation,
the property
owner must show there was an invasion or appropriation (a “taking” or
“damaging”) of some valuable property right which the property. owner
possesses by a public entity and the invasion or appropriation directly and
specially affected.the property owner to his injury. [Citations.]
In an inverse condemnation action, the property owner need not
show the public entity intended to take or damage the property; inverse
actions have been permitted when the invasion occurred as a result of
negligence. [Citations.] “All that is necessary to show is that the damage
resulted from an exercise of governmental power while seeking to
promote the general interest in its relation to any legitimate object of the
government.” -[Citation.] ...
Further, while an eminent domain proceeding contemplates a
permanent acquisition of private property for a public use, an inverse
4 The Court of Appeal in Beaty also tld tht alae lloging inverse
condemnation is “not entitled to relocation assistance benefits until there is a final
judgment in inverse condemnation.”. 186 Cal.App.3d at p. 920. “An application for
relocation benefits before the acquisition or taking has been established would be
premature.” Id.,
at p. 921.
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condemnation action may be maintained for mere damage to property
[citation], for temporary invasions [citation], and even when the public
entity does not physically possess the property [citations]. Unlike an
eminent domain proceeding, an inverse condemnation action does not
always result iri the public entity acquiring private property. [Citatiohs.]
Beaty, at pp. 903-904, bold added.
The constitutional right to just compensation cannot be diminished or limited by
any statute. Escondido Union School District v. Casa Suenos De Oro Inc. 92005) 129
Cal.App.4" 944, 959. “The process of determining ‘just compensation’ is purely a
judicial function which cannot be circumscribed by the Legislature.” Baldwin Park
Redevelopment
Agency v. Irving, 156 Cal.App.3d
at p. 428, 439.
Leaseholders have rights to compensation for the value of the lease (use of the
land and its structures) and any tangibles or intangibles lost or forfeited by the “taking” of
real property by the | government for public use. Chhour v. Community Redevelopment
Agency of Buena Park (1996) 46 Cal.App.4"" 273; Almota Farmers Elevator and
Warehouse Co. v. United States (1973) 409 U.S.'470; Redevelopment Agency of San
Diego v. Attisha (2005) 128 Cal.App.4"" 357, 366-367; City of Vista v. Fielder (1996) 13
Cal.4" 612, 617-618; C.C.P. §1265.150. “Generally, a lessee is entitled to compensation
for the value ofhis leasehold interest taken, if any, and any of his property taken
therewith.” Kong,
at p. 1041. This may include property that cannot be removed from.
the premises without being damaged. See Chhour, 46 Cal.App.4 at pp. 282-283.
For inverse condemnation, the destruction or damaging of property must have
some connection with public use. Aareola v. County of Monterey (2002) 99 Cal.App.4%
722, 742. “A public entity’s maintenance of a public improvement constitutes the
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constitutionally required public use so long as it is the entity’s deliberate act to undertake
the particular
plan or manner of maintenance. [Citation.] The necessary
finding is that
the wrongful act be part of the deliberate design, construction, or maintenance ofthe
public improvement. ‘The fundamental justification for inverse liability is that the
government, acting in furtherance of public objectives, is taking a calculated risk that
private property may be damaged.” [Citation.]” Arreola, at p. 742. “Other cases have
also found that inadequate maintenance can support liability in inverse condemnation.
Two such cases involved damage to property caused by broken water pipes that the
public entities had failed to properly maintain. [Citations.]” Id., at p. 743. In Pacific
Bell v. City of San Diego (2000) 81 CalApp4* 596, the “court found that the
deliberateness required for inverse condemnation liability ‘was satisfied by a finding that
the public improvement, as designed, constructed and maintained, presented an inherent
risk of danger to private property and the inherent risk materialized and caused damage.
[Citation]” Ameola, at p. 743.
In Arreola, the federal governinent instituted a project design to clear
a river
channel and construct earthen lovees to prevent flooding. The established maintenance
plan required that the channel be kept clear of shoals, weeds and wild growth, which
would otherwise decrease the water capacity of the channel. Id., at p. 732.
Responsibility was then tumed over to the local government, and the channel was kept
clear for over 20 years. It was efficient in holding water when large storms occurred.
Thereafter the State Department of Fish and Game took over, and intentionally stopped
maintaining the channel and allowing vegetation to grow, with a mind that it would
preserve river habitat, which the County endorsed. ‘As the channel became more clogged
over the next 20 years, any clearing efforts became more expensive, and the County did
13
not or was unable to adequately fund the maintenance of the channel. Id., at p. 734. A
large storm occurred, and because the channel lacked capacity (due to the lack of
maintenance, the levees also failed, and there was a massive flood over the land and the
the highway, causing damage to 300 plaintiffs due to flooding and sediment deposits.
The Sixth Appellate District upheld the trial court judgment for inverse condemnation, as
“the manner
in which the channel was maintained for over 20 years was a deliberate
policy of the local public agencies Tesponsible for the Porject. Such a determination is a
finding of the. deliberate government action necessary for inverse condemnation
liability.” Arreola, at p. 745,
There is also aright to just. compensation for any personal property that is “lost”
or devalued as a result ofthe condemnation itself (rather than the personal circumstances
of the property owner). Baldwin Park, at p. 434.
[If the state takes or damages personal property in the exercise of
its power of eminent domain, itis obligate pay just compensation to
the owners. [Citations: J.
The law of California and elsewhere has long recognized
compensable consequential damage t property rights which, while not
actually “taken”, are > damaged or destrojed by the physical appropriation
ofa portion of the owner’s property. [Citations.] There seems to be no
logical reason why that principle should not apply with equal force where,
in condemning real property, personal property, though not “taken,” is
damages or its value destroyed.
eee
14
Where the removal or relocation of either tangible or intangible
personal property, under the circumstances of the particular case, is made
impossible by the.condemnatory act itself, then the owner’s just
compensation should not be limited by an arbitrary notion that.in eminent
domain. any particular form-or recognized property right is non-
compensable. [Citations.]
Baldwin Park,at pp. 435-436.
In Baldwin Park, the condemned property was used for decades as an auto
junkyard. Upon notice of the government’s intention to exercise eminent domain, the
owner of the property tried to find another location for the junk yard within the
geographic area (12 mile radius), but none existed. “The government agency-refused to,
pay the owner for the value of the hundreds of ‘vehicles at the junkyard; and further
threatened to charge the owner for the cost of removal thereof if they were not taken -
away.
“The Court of. ‘Appeal in Baldwin Park held that the loss of this personal property
was compensable, because its loss or loss of value was due to the condemnation itself —
since the owner was unable to ‘move the inventory to another location in the geographic
area.
Here, the inability to relocate was the result of the nature of
the business and the lack of-any appropriately zoned Property within
a reasonably accessible area, Hence the act of condemnation of the
only available location directly caused the loss.
Id, at p. 437.
15
In Kong, the defendants City and Redevelopment Agency asserted that there was
no “taking” of the plaintiff's property, because the plaintiff's sublease “naturally expired
on its own terms.” Kong, at p. 1038. The Court of Appeal disagreed. Prior to the
expiration of the sublease, the City and Agency had already identified the property for
acquisition for public Purposes. The government entities acquired the property by
eminent domain, and then turned over ownership to an individual (Dr. Moskowitz) who
‘was to be the developer of the property for public purposes. The government entities
never filed an eminent domain proceeding against the plaintiff sublessee (or to plaintiff's
lessor). Although the government entities issued a formal 90-day notice to vacate to the ©
plaintiff, as Dr. Moskowitz was not yet ready to build, he allowed plaintiffto continue to
stay at and use the-premises. More specifically, Dr. Moskowitz agreed to a one-year
lease (providing for a 6 month notice of termination) with the persons holding the Jease,
but no new agreement was ever reached with the plaintiff sublessee — plaintiff simply
continued to stay at the premises. Dr. Moskowitz then built a casino, but did not need the
portion of the property occupied by plaintiff until. five years later. On adate after
the date
that the original sublease would have expired, Dr. Moskowitz gave 6-month written
notice of termination to the lessor and to the sublessee plaintiff. Plaintiff did not
voluntarily leave, but was evicted. Moskowitz then demolished the building on the
premises, and constructed a parking lot for the casino,
The Court of Appeal held that “plaintiff alleged facts sufficient to constitute a
taking which terminated plaintiffs sublease”, and that there was a “causal connection
between the Agency’s initial acquisition of the premises and plaintiff's displacement
from the premises.” Kong, at pp. 1038-1039. The Court of. ‘Appeal held that the
acquisition of the property for a public purpose, and the termination ofthe original master
16
lease, effectuated a termination of the sublease — and thus a “taking” the subleascholdér’s
property rights. Kong, at p. 1040.
Thus, the allegations of the complaint are sufficient to establish a taking of
plaintiff's original subleasehold interest and to negate the defendants’
assertion
that it did not expire until December 31, 1998. That plaintiff
ultimately was not required to vacate
the premises until after what would
have been the last day of his original sublease does not compel a contrary
conclusion.
Kong, at p. 1040.
Defendant relies upon sn Diego Metropolitan Transit Development Board v.
Handlery
Hotel Ine. (1999) 73 Cal.App.4" 517, which has no application here. In
Handlery Hotel, the Court of Appeal held that a hypothetical expectation of'a future lease
or lease renewal is not a compensable property right, where there is no contractual option.
The Court of Appeal held that the golf course business owner had no claim for inverse
condemnation
as it failed to show unreasonable precondemnation
conduct by the
government agency because there was no showing of unreasonable conduct, and-no
interference with the lessee’s use and.enjoyment of its leasehold. The other holding in
Handlery involved whether or not there was a right to compensation for Joss of goodwill.
The Court is not basing its finding of inverse condemnation upon any hypothetical
expectation of lease renewal. Further, as set forth herein, the Court finds unreasonable
conduct by Defendant that interfered with the Plaintiff's existing leases and their use and.
enjoyment of the marina facilities. There was also the loss of their vessels because the
City created a situation were the City knew that Plaintiffs’ vessels could not be moved,
17
and thus would be a loss of property when Defendant deliberately made it impossible to
stay.
Further,in nKedevelopment Agency 0) in Diego Attisha (2005) 128
Cal.App.4" 357, the Court of Appeal held that the holding in Handlery
Hotels is
distinguishable and dependent upon its facts: “Handlery does not suggest that when.
condemnation caused termination
of a lease and the tenant’s entitlementto goodwill is
established, evidence of his or her reasonable expectation of a lease renewal is
inadmissible
as a matter of law in valuing goodwill loss.” ha,
at pp. 137-1385
Indeed, the holding in Attisha is that a leasehold owner can get compensation for inverse
condemnation, including the value of intangibles.
Defendant
also relies upon is MarinaInc
(2008) 150 Cal.App.4"" 615 by the Second Appellate District. The defendant leased land
from the plaintiff County to construct and operate a marina at the harbor. The lease
was
for 40 years. ‘The defendant built the marina, including landside improvements and boat
slips, and subleased the slips to boat owners. At the.end of the lease, the parties were
unable to reach agreement on a new lease, and the County intended to take over the
marina
for itself. The County sued the marina operator to prevent it from removing the
improvements, and the defendant counter-sued for inverse condemnation for not-allowing
it to take or remove the improvements. Evidence was presented that the prohibition
against taking the improvements was due to the fact that the California Coastal
5 “Indeed, in Handlery we noted that while Handlery’s successive short-term lease
extensions defined the length of time it reasonably expected to remain in business, ‘thisis
not the case where the impending expropriation constituted the sole reason for shortening
what would otherwise have been a longer lease term in a well- established and mutually
satisfactory lessor-lessee relationship, giving rise to recovery of business losses beyond
the expiration of the original lease term,’ [Citations.}’ Attisha, at p. 138.
1
Commission required a coastal development permit to remove the docks and to remove
the landside improvements. There was no such requirement when the parties entered into
the’ lease decades before. .The County also asserted that the CCC would never allow the
demolition of the marina unless there was a planned replacement, Id.,
at p. 620. So in
essence the removal of ‘the improvements was barred by the State.
The Court of Appeal, in the 2-1 split decision, held that the “cause” of property
damages to the defendant was the restrictions by the State CCC, not the County, and thus
no “taking” by the County. Defendant Redwood City selects language form the Channel
Islands decision stating that after the expiration of a lease there is no property rights, and
that a lease can only be the basis of a breach of contract but not inverse condemnation.
The Dissent in Channel Islands points to the multiple cases of established law holding
that a leasehold can be the basis of an inverse condemnation case. Channel Islands,
dissent at p. 633. This Court chooses to follow those established cases and law, and not
Channel Islands to the extent that it is contrary or inconsistent.
Redwood City’s Plan to Develop the Land Around Docktown Marina,
andto Get Rid of All Leaseholders at Docktown Marina
People have been living in residential watercraft at Docktown Marina for decades
(since the 1960s). Each
of the Plaintiffs and Plaintiffs in Intervention had a live-aboard
lease at Docktown Marina while it was managed by an independent harbor master.
Specificallyin 1983, the City issued a permit to Fred Earnhardt as the Docktown Marina
operator. (See Trial Exhibit #456 at Bates page 13347.)
‘The City owns the water area, and had a license to use the land adjacent to
Redwood Creek as part of the Docktown Marina, including parking and dock access, a
19
harbormaster office, restrooms and laundry facilities for tenants, and the Peninsula Yacht
Club. The City Manager testi
Preview
VINCENT J. BARTOLOTTA, JR., ESQ. (SBN 055139) KAREN R. FROSTROM, ESQ. (SBN 207044) THORSNES BARTOLOTTA McGUIRE LLP 2550 Fifth Avenue, 11" Floor San Diego, California 92103 Tel: (619) 236-9363 Fax: (619) 236-9653 Attorneys for Plaintiffs Nina Peschcke-Koedt, Emilio Diaz, Dan Slanker, Dawn Slanker, William Michael Fleming, Edward Stancil, Jedrick Humphries, Jonathan Reid, Tina Reid, and John Chambers SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 FRANCESCA FAMBROUGH, CHRIS Case No.: 17CIV05387 TAVENNER, NINA PESCHCKE-KOEDT, 11 EMILIO DIAZ, DAN SLANKER, DAWN SLANKER, BRENDA SMITH, THUMPER o Ben 12 SMITH, PLAINTIFFS-INTERVENORS’ REPLY BRIEF IN SUPPORT OF MOTION FOR AWARD OF 13 Plaintiffs, ATTORNEYS’ FEES AND COSTS 14 Vv. 15 REDWOOD CITY, Date: January 19, 2024 Time: 9:00 a.m. 16 Defendant. Dept: 2 Judge: Hon. Marie S. Weiner 17 ALISON MADDEN, WILLIAM MICHAEL 18 FLEMING, EDWARD STANCIL, JEDRICK HUMPHRIES, ALBA LUCIA 19 DIAZ, JONATHAN REID, TINA REID, AND JOHN CHAMBERS, 20 Plaintiffs-Intervenors, 21 Vv. 22 CITY OF REDWOOD CITY, 23 Defendant. 24 25 /// 26 /// 27 28 1568528v1 PLAINTIFFS-INTERVENORS’ REPLY BRIEF IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS “[T]he lodestar is the basic fee for comparable legal services in the community. Ketchum v. Moses, 24 Cal.4" 1122, 1132 (2001). Under the lodestar theory, the fee may be adjusted based on factors including “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award.” Id. The instant case involved a significant amount of novelty including interpretation of the CRAL and the uphill battle that is inverse condemnation. The issues in the case were thoroughly litigated and required significant skill. This was an extremely time-consuming case. Should the court choose to apply a contingency fee, Plaintiffs request a lodestar modifier. 10 Avenida San Juan Partnership v. City of San Clemente, 201 Cal.App.4"" 1256, 1282 (2011) 11 does not contain the holding that the city contends. Rather than prohibit reimbursement of a Ben 12 contingent lawyer’s fees, the case held that there could not be recovery of in-house counsel’s time o S58 13 because he had not been paid outside of his regular salary. Those facts are inapplicable here. None of a 14 the Plaintiffs have in-house lawyers. Bec 15 The city misrepresents the amount of the judgment. Plaintiffs were awarded $345,873. (Exh. Ba NEA ms 16 “A” hereto.) 17 If the Court agrees with the city that Plaintiffs are limited to a contingency recovery, none of 18 the line-item challenges are relevant. If, however, the Court awards Plaintiff for the time expended, 19 it should award all reasonable amounts related to the inverse condemnation case, as was held in the 20 Red Mountain case cited by the city. The entire case, regardless of what cause of action, was to 21 challenge the city’s flawed efforts to close Docktown. While the Court may have held that the 22 CRAL does not apply until a tenant moves out, Plaintiffs did not “lose” on that cause of action. 23 Additionally, the city cites no authority that Plaintiffs are not entitled to be reimbursed for work 24 done for Plaintiffs who settled. 25 /// 26 /// 27 /// 28 /// 1568528v1 PLAINTIFFS-INTERVENORS’ REPLY BRIEF IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS For the foregoing reasons, Plaintiffs request an award of attorneys’ fees as requested. Dated: January 10, 2024 THORSNES BARTOLOTTA McGUIRE LLP By: man ~ VINCENT J. BARTOLOTTA, JR., ESQ. KAREN R. FROSTROM, ESQ. Attorneys for Plaintiffs and Plaintiffs-Intervenors 10 11 Ben 12 o 13 a 14 15 masz B2 NEA ms 16 17 18 19 20 21 22 23 24 25 26 27 28 1568528v1 PLAINTIFFS-INTERVENORS’ REPLY BRIEF IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS EXHIBIT "A" FILED SAN MATEO COUNTY a p Cpiet ied perior Co By SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO FRANCESCA FAMBROUGH, et al., Civil No. 17CIV05387 Plaintiffs, Assigned for All Purposes to Hon. Marie S. Weiner, Dept. 2 vs. JUDGMENT AFTER PHASE ONE REDWOOD CITY, COURT TRIAL AND PHASE TWO JURY TRIAL Defendant. ALLISON MADDEN; WILLIAM MICHAEL FLEMING; EDWARD STANCIL; JEDRICK HUMPHRIES; ALBA LUCIA DIAZ; JONATHAN REID; TINA REID; and JOHN CHAMBERS, Plaintiffs in Intervention, ) vs. CITY OF REDWOOD CITY, Defendant. / Plaintiffs and Plaintiffs in Intervention alleged two causes of action, namely, (1) violation of and/or request for recovery under the California Relocation Assistance Law; and (2) Inverse Condemnation. The case proceeded in two phases: Phase One 1 Court Trial of the CRLA claim and the determination of liability for Inverse Condemnation; and the Phase Two Jury Trial on the issue of just compensation for Inverse Condemnation. On August 2, 2021, the Phase One Court Trial commenced in Department 2 of this Court before the Honorable Marie S. Weiner. Karen Frostrom of Thorsnes Bartolotta McGuire LLP appeared on behalf of all Plaintiffs and Plaintiffs in Intervention except Alison Madden; Albert Tong, Kevin Siegel and Maxwell Blum of Burke Williams & Sorensen LLP appeared on behalf of Defendant Redwood City; and Alison Madden appeared on. behalf of herself as an Intervenor Plaintiff. The presentation of evidence concluded on September 20, 2021. Oral Closing Arguments were presented on September 27, 2021. Thereafter counsel and the parties presented Written Closing Arguments, concluding November 18, 2021. Thereafter, the Court issued a Tentative Decision finding liability for inverse condemnation, then a Proposed Statement of Decision as to which the parties had the opportunity to file Objections, and then a “Final” Statement of Decision on the Phase One Court Trial. The “Final” Statement of Decision on Phase One Court Trial is attached hereto and incorporated by reference. Several Plaintiffs and Plaintiffs in Intervention entered into settlements with Defendant, both before and after the Phase One Court Trial Decision, and their voluntarily dismissed claims are thus not reflecting in this Judgment. A Phase Two Jury Trial commenced on October 5, 2023 for adjudication of damages for inverse condemnation in Department 2 of this Court. Karen Frostrom of Thorsnes Bartolotia McGuire LLP appeared on behalf of Plaintiffs and Plaintiffs in Intervention; and Kevin Siegel and Albert Tong of Burke Williams & Sorensen LLP appeared on behalf of Defendant City of Redwood City. A Jury of 12 persons plus two alternate jurors were empaneled and sworn. Document and witness evidence was presented. Oral Closing Arguments were presented on October 12, 2023 On October 12, 2023, the jury rendered Special Verdicts, which are attached hereto and incorporated by reference. Upon polling, each and all of the Special Verdicts were found unanimously. The Jury found that just compensation at fair market value of the property taken by Defendant as to each Plaintiff and Plaintiff in Intervention is as follows. 1 What was the fair market value of the property taken from Plaintiff John Chambers? $79,283 2 What was the fair market value of the property taken from Plaintiff Jed Humphries? $56,090 3 What was the fair market value of the property taken from Plaintiff Nina Peschcke-Koedt? $93,950 4 What was the fair market value of the property taken from Plaintiff Edward Stancil relating to Whisper? $82,950 5 What was the fair market value of the property taken from Plaintiff Edward Stancil relating to Fantasy? $33,600 IT IS HEREBY ADJUDGED, ORDERED and DECREED as follows: The Court finds that Plaintiff Nina Peschcke-Koedt and Plaintiffs in Intervention Edward Stancil, Jed Humphries, and John Chambers have proven their second cause of action for inverse condemnation by a preponderance of the evidence ‘against Defendant City of Redwood City. Plaintiffs and Plaintiffs in Intervention failed to prove by a preponderance of the evidence their first cause of action for monetary benefits, compensation, and reimbursement of expenses under the California Relocation Act, Government Code Section 7260 et seq., and/or under federal Uniform Relocation Assistance statutes, 42 U.S.C. §4620 et seq., as the claim is procedurally defective for failure to serve a prelitigation government claim in conformity with the Tequirements of California Government Code Section 915. Nina Péschcek-Koedt is awarded $93,950.00 against City of Redwood City. Edward Stancil is awarded $116,550.00 against City of Redwood City. Jed Humphries is awarded $56,090.00 against City of Redwood City. - John Chambers is awarded $79,283.00 against City of Redwood City. Plaintiffs and Plaintiffs in Intervention are the prevailing parties, and awarded statutory costs upon timely service and filing of Memorandum of Costs; and awarded reasonable attorney’s fees, appraisal costs, and any other reasonable disbursements and expenses pursuant to Code of Civil Procedure Section 1036, upon timely service and filing of a Motion for Award of Fees and Costs. Pursuant to Code of Civil Procedure Sections 1268.310 et seq., this Judgment shall draw interest from the date of entry of Judgment at the rate of 10% per annum, compounded quarterly 6 1268.360); except that any and all interest accrued as to the judgment of each Plaintiff or Plaintiff in Intervention shall be completely offset while that Plaintiff or Plaintiff in Intervention remains living on (and does not move out from) their subject vessel at Docktown Marina in Redwood City, California pursuant to CCP Section 1268.330. DATED: _ October 19, 2023 Wf HON. MARIE S. WEINER JUDGE OF THE SUPERIOR COURT “FILED SAN MATEO col 4 oo 023 aSuperior Coy EPO BRC SUPERIOR COURT OF THE STATE OF CALIFOR COUNTY-OF SAN MATEO FRANCESCA FAMBROUGH, et al., Civil No. 17CIV 05387 Plaintiffs, Assigned for All Purposes to Hon. Marie S. Weiner, Dept. 2 vs. FINAL STATEMENT OF DECISION REDWOOD CITY, AFTER PHASE ONE COURT TRIAL ” Defendant. ALLISON MADDEN; WILLIAM MICHAEL FLEMING; EDWARD STANCIL; JEDRICK HUMPHRIES; ALBA LUCIA DIAZ; JONATHAN REID; TINA REID; and JOHN CHAMBERS, Plaintiffs in Intervention, vs. CITY OF REDWOOD CITY, Defendant. / Pursuant to Case Management Order #17 filed September 17, 2020 the Court noted that the Plaintiffs and Plaintiffs in Intervention had two causes of action, namely . (1) violation of and/or request for recovery under the California Relocation Assistance Law; and (2) Inverse Condemnation. Aclaim for inverse condemnationis adjudicated in two parts: first, a court trial of whether there is a “taking”, and if'so, second, a jury trial of damages. The statutory claim under the first cause of action is subjectto court trial. Accordingly, the trial of the claims is BIFURCATED, such that all claims and defenses subject to Court Trial shall be adjudicated first in a single Phase One Court Trial. If Plaintiffs prevail on the inverse condemnation claim, a Phase Two Jury Trial will be scheduled thereafter for adjudication _ damages phase. On August 2, 2021, the Phase One Court Trial commenced in Department 2 of this Court before the Honorable Marie S. Weiner. Karen Frostrom of Thorsnes Bartolotta McGuire LLP appeared on behalf of all Plaintiffs and Plaintiffs in Intervention except Madden; Albert Tong, Kevin Siegel and Maxwell Blum of Burke Williams & Sorensen LLP appeared on behalf of Defendant Redwood City; and Alison Madden appeared on behalf of herselfas an Intervenor Plaintiff. The presentation of evidence concluded on September 20, 2021. Oral Closing Arguments were presented on September 27, 2021. Thereafter counsel and the parties presented Written Closing Arguments, concluding November 18, 2021. Upon due ‘consideration of the briefs, evidence presented including the Administrative Record in 17CIV04680, the arguments of counsel, the Court issued a Tentative Decision after Court Trial. The parties requested a Statement of Decision. A Proposed Statement of a was issued; and the parties had the opportunity to filed Objections thereto. Plaintiffs Allison Madden, William Fleming (by his heirs after death), and Jonathan and Tina Reid have now settled with Defendant and dismissed their claims. IT IS HEREBY DECIDED, ORDERED AND ADJUDGED, as the Court’s Final Statement of Decision after Phase One Court Trial as follows: The first cause of action for monetary benefits, compensation, and reimbursement of expenses under the California Relocation Act, Government Code Section 7260 et seq., and/or under federal Uniform Relocation Assistance statutes, 42 U.S.C. §4620 et seq., is. DENIED AND DISMISSED WITHOUT PREJUDICE as procedurally defective for failure to serve a prelitigation government claim in conformity with the requirements of California Government Code Section 915. The Court finds that Plaintiffs and Plaintiffs in Intervention Nina Peschoek-Koedt, Emilio Diaz, Dan Slanker, Dawn Slanker, Edward Stancil, Jedrick Humphries, and John Chambers have proven their second. cause of action for inverse condemnation by a preponderance of the evidence against Defendant City of Redwood City, as to liability. A Phase Two Jury Trialis scheduledto commence on October 5, 2023 for adjudication of damages for inverse condemnation. The claim-for award of attorneys’ fees will be briefed and addressed after determination of damages in the Phase Two Jury Trial. THE COURT FINDS, as its Final Statement of Decision for Phase One Court Trial, as follows: The Parties Several Plaintiffs and Plaintiffs in Intervention resolved and dismissed their claims asserted in this lawsuit: and the remaining Plaintiffs and Plaintiffs in Intervention are now: Nina Peschcek-Koedt, Emilio Diaz, Dan Slanker, Dawn Slanker, Edward Stancil, Jedrick Humphries, and John Chambers. The operative complaints are the First Amended Complaint filed February 27, 2018 (as to which class certification was denied, and the claim for declaratory relief dismissed) and the Complaint in Intervention filed January 10, 2020. The only Defendant is City of Redwood City. Prelitigation Claims and Administrative Exhaustion Despite any dispute by Defendant, the evidence demonstrates, and it is not subject to legitimate dispute, that Plaintiffs and Plaintiffs in Intervention made claims under the California Relocation Assistance Act, Government Code Sections 7260 et seq., (hereinafter “Relocation Act”), and that Plaintiffs and Plaintiffs in Intervention filed appeals with Defendant Redwood City (o7 its authorized agents) and sought review of denial of benefits. Accordingly, Plaintiffs and Plaintiffs in Intervention exhausted administrative remedies under the Relocation Act ~ particularly as Defendant refused to provide any benefits under the Relocation Act, nor establish an administrative procedure thereunder. Yet, Plaintiffs and Plaintiffs in Intervention brought claims in this lawsuit for monetary compensation and monetary benefits under the Relocation Act (and the related federal statute). Defendant Redwood City asserts failure to comply with Government 4 Code Section 905, i.e., failure to submit a prelitigation government claim. The Court of Appeal in Baiza v. Southgate Recreation and Park District (1976) 59 Cal.App.3d 669, held that where a displaced person is secking monetary benefits under the Relocation Act against a public entity, that person must exhaust administrative remedies under the Relocation Act and comply with the prelitigation government claim statute under the Government Claims Act, Government Code Section 905 et seg. “The two statutes, general and specific, are not in conflict and must therefore be harmonized and applied together.” Baiza, atp. 64 fn. 4. Defendant asserts that Plaintiffs and Plaintiffs in Intervention failed to submit any government claim under Section 905, and thus have no right to relief nor the Court jurisdiction to grant relief under the Relocation Act. It is undisputed that no prelitigation government claim is required for Plaintiffs’ and Plaintiffs in Intervention’s claim for inverse condemnation. Government Code §905.1. Plaintiffs and Plaintiffs in Intervention attempt to skirt the issue by declaring that they are only seeking to compel Defendant to adopt and implement a Relocation Act “plan”. Such an assertion raised for the first time at the Pretrial Conference is belied by the allegations of the First ‘Amended Complaint and the Complaint in Intervention, which explicitly seek monetary benefits and compensation. The inquiry is whether the written “claims” made by Plaintiffs and Plaintiffs in Intervention to Defendant demanding monetary benefits under the Relocation Act, are sufficient to constitute a “claim” under the Government Claim Act. At the very least, the prelitigation governtnent claim statutory requirement is subject to the doctrine of substantial compliance. In that regard, there is substantial compliance where each of the elements of a claim have been complied with, even if 5 defectively; but there is not substantial compliance where thereis no effort to comply with the requirements of a government claim at all. Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713. “The doctrine of substantial compliance requires no more than that the governmental entity be apprised of the claim, have an opportunity to investigate and settle it and incur no prejudice as a result of plaintiff's failure to strictly comply with the claims act.’ [Citation.]” Johnson v. San Diego Unified School District (199) 217 Cal.App3d 692, 700; see also Santes, at p.713. As the Supreme Court stated in City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 456-457: “[W]e conclude that to gauge the sufficiency of a particular claim, Two tests shall be applied: Is there Some compliance with All of the statutory requirements; and, if so, is there compliance sufficient to constitute Substantial compliance?” The elements of a prelitigation government claim are set forth in Government Code Section 910. On the other hand, if the written communication makes it clear that it is a claim for compensation against the public entity and that failure to satisfy the demand will result in the filing of a lawsuit, then the public entity has an affirmative obligation under Government Code Section 911 to notify the claimant of any deficiencies, defect or omission in their claim as presented. Otherwise “any.defense as to sufficiency of the claim” is “waived” by the defendant. The evidence is that there was no such Section 911 notification by Defendant to any of the Plaintiffs or Plaintiffs in Intervention. _ Upon review of the evidence, the Court finds that Plaintiffs and Plaintiffs in Intervention did comply or did substantially comply with the prelitigation government . claim requirement of Government Code Sections 905 and 910. 6 But that is not enough. The written claim must also be delivered or mailed to the public entity in conformity with the requirements of Section 915. Substantial compliance with Section 915 is not legally sufficient. DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4® 983. That statute requires that the written claims be presented by “delivering it to the clerk, secretary or auditor” of the public entity, or “mailing it to the clerk, secretary, auditor, or to the governing body at its principal office”. The Supreme Court held in Di mpli-Mintz ounty o nt ra (2012) 55 Cal.4" 983 that the statute is to be applied literally and strictly, in that it must be delivered or mailed to the clerk, secretary, auditor, or governing body itself — and not someone else. The evidence is undisputed that none of the Plaintiffs or Plaintiffs in intervention presented their written “claim” to the City Clerk of Redwood City or to the City Council of Redwood City directly. Alternatively, the statute provides that presentation is fulfilled if the claim “is actually received by the clerk, secretary, auditor or board of the local public entity.” Govt. Code §915(e)(1). In our case, Plaintiffs and Plaintiffs in Intervention failed to present any evidence that their claims were forwarded by the addressees to the City Clerk or to the City Council or its Chairperson. There is no evidence that these authorized persons/entities “actually received” the claims of Plaintiffs and Plaintiffs in Intervention. Accordingly, the first cause of action for violation of the Relocation Act is DENIED WITHOUT PREJUDICE for failure to coniply with the Government Claims Act, Government Code Section 905 et seq, and specifically service under Section 915,. prior to the filing ofthis lawsuit. Premature Claims under Relocation Act The Relocation Act is clear that monetary benefits thereunder are not triggered until the resident actually moves out. This lawsuit for ‘monetary benefits under the Relocation Act was filed by Plaintiffs and Plaintiffs in Intervention before they moved out of the Docktown Marina or out of their residential boats berthed there — indeed they still have not moved out, Under the Relocation. Ack a “displaced person” is defined as “any person who moves from real property, or who moves his or her personal property from real property”. Thus, the person has to move out in order to triggered monetary recovery under the Relocation Act. “The operative date for eligtbilty under CRAL is the moving date ofthe displaced person.” Superior Strut & Hanger Co. v, Port of Oakland (1977) 72 Cal. App.3d 987, 999; Kong v. City of Hwaiian Gardens Redevelopment Agency (2002) 101 Cal.App.4" 1317, 1326; see also Bi-Rite Meat & Provisions Co. v. City of, Hawaiian Gardens Redevelopment Agency (2007) 156 Cal.App.4" 1419, 1431. “It is the moving date of the displaced person which determines his eligibility under the mandatory relocation assistance provision”. Albright v. State of California (1979) 101 Cal.App.3d. 14, 21. Accordingly, there appears no procedural barrier for Plaintiffs and Plaintiffs in Intervenion to proceed with timely filing a prelitigation government claim under the Government Claim Act, asserting violation of the Relocation Act and seeking remedies thereunder for monetary benef and compensation, after they move out. Inverse Condemnation Overview The Court finds that Plaintiffs and Plaintiffs in Intervention have proven their cause of action for inverse condemnation against Defendant Redwood City. This dispute arises from the following situation: For decades, people have been allowed to have live aboard boats! and houseboats” at the Docktown Marina in Redwood City. Docktown Marina has/had two types of agreements: (i) berthing license agreements for non-live-aboard vessels, and (ii) live-aboard leases. In March 2013 Redwood City took over the management of the Docktown Marina. A lawsuit was filed in 2015 by Citizens for Public Trust alleging that the waterway at the Docktown Marina was subjectto the Public Trust, and soughtto terminate all residential use of the Docktown Marina. Pursuant to settlement of that lawsuit — of which the Plaintiffs and Plaintiffs in Intervention were not parties — the Docktown Plan was adopted by Redwood City in December 2016, establishing a plan to displace and remove all residential use of Docktown, including the requirement that vessels be physically moved (or subject owners to nuisance abatement) and providing certain benefits if residents cooperated in leaving. Plaintiffs and Plaintiffs in Intervention refuse to voluntarily leave. This case presents the unusual situation of residential boats in leased marina slips. The lease is not for residing in an immovable structure; rather the tenant owns the immovable structure. By the inverse condemnation conduct of Redwood City, 1 A live-aboard boat is a boat that is used or capable of being used for active self- propelled navigation, that is moored for an extended period, and that is used during the period of mooring as a private principal place of residence. 2 A houseboat is a boat that is used for a residential or other non-water-oriented purpose and that is not used for active navigation. 9 tenants have lost the use of basic amenities and habitability of the marina itself? while leasing the dock, and thereafter by their eviction, will lose or have lost their houseboat property. Even if they could be moved by towing, there is no place in the area for them to go — there are no available marina slips for live-aboard boats or houseboats. Redwood City had the opportunity to mitigate the situation by providing live-aboard slips in another marina in Redwood City, and even made representations to Docktown Marina residents that such a move-would be available, but instead those few available slips were given to non-Docktown persons. Indeed, evidence was presented that Redwood City paid $400,000 to the Port of Redwood City for improvements to its Municipal Marina, thus an eye to having the Docktown Marina tenants move there, but then did nothing to facilitate such a move — and Port denied any requests by Plaintiffs and Plaintiffs in Intervention to move there. The evidence is that there are no alternatives in the geographic area. Applicable Law “Our federal and state Constitutions proacsibe the governmental taking of private property without just eofapensation. (U.S. Const. Amend. V, Cal Const. art, 1 §19.)” Kong v. City of Hawaiian Gardens ‘Redevelopment Agency (2002) 108 Cal:App.4" 1028, 1038. Such a “taking”, for which just compensation is required, may be of real property or of personal property. Baldwin Park Redevelopment Agency v. Irving (1984) 156 Cal.App.3d 428, 435; City of Needles v. Griswold (1992) 6 Cal.App.4 1881, 1891 3 An agreement for rental or lease of space on the water where.a vessel may be docked, i.e., a boat slip or berth, in a marina is “real property”,-as water in its natural state is part of the land. California Prectice Guide Landlord Tenant §7:79. “While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse ‘condemnation is predicated on the proposition that a taking may occur without such formal proceedings.’ [Citation.J City of ‘Needles,'6 Cal.App.4" at p. 1889. Benefits under the Relocation Act are separate from the just compensation due for inverse condemnation or eminent domain under the federal and state Constitutions.* . Besty v. Imperial Inigation District 1986) 186 Cal.App.3d 897, 902. To state a cause of action for inverse condemnation, the property owner must show there was an invasion or appropriation (a “taking” or “damaging”) of some valuable property right which the property. owner possesses by a public entity and the invasion or appropriation directly and specially affected.the property owner to his injury. [Citations.] In an inverse condemnation action, the property owner need not show the public entity intended to take or damage the property; inverse actions have been permitted when the invasion occurred as a result of negligence. [Citations.] “All that is necessary to show is that the damage resulted from an exercise of governmental power while seeking to promote the general interest in its relation to any legitimate object of the government.” -[Citation.] ... Further, while an eminent domain proceeding contemplates a permanent acquisition of private property for a public use, an inverse 4 The Court of Appeal in Beaty also tld tht alae lloging inverse condemnation is “not entitled to relocation assistance benefits until there is a final judgment in inverse condemnation.”. 186 Cal.App.3d at p. 920. “An application for relocation benefits before the acquisition or taking has been established would be premature.” Id., at p. 921. i condemnation action may be maintained for mere damage to property [citation], for temporary invasions [citation], and even when the public entity does not physically possess the property [citations]. Unlike an eminent domain proceeding, an inverse condemnation action does not always result iri the public entity acquiring private property. [Citatiohs.] Beaty, at pp. 903-904, bold added. The constitutional right to just compensation cannot be diminished or limited by any statute. Escondido Union School District v. Casa Suenos De Oro Inc. 92005) 129 Cal.App.4" 944, 959. “The process of determining ‘just compensation’ is purely a judicial function which cannot be circumscribed by the Legislature.” Baldwin Park Redevelopment Agency v. Irving, 156 Cal.App.3d at p. 428, 439. Leaseholders have rights to compensation for the value of the lease (use of the land and its structures) and any tangibles or intangibles lost or forfeited by the “taking” of real property by the | government for public use. Chhour v. Community Redevelopment Agency of Buena Park (1996) 46 Cal.App.4"" 273; Almota Farmers Elevator and Warehouse Co. v. United States (1973) 409 U.S.'470; Redevelopment Agency of San Diego v. Attisha (2005) 128 Cal.App.4"" 357, 366-367; City of Vista v. Fielder (1996) 13 Cal.4" 612, 617-618; C.C.P. §1265.150. “Generally, a lessee is entitled to compensation for the value ofhis leasehold interest taken, if any, and any of his property taken therewith.” Kong, at p. 1041. This may include property that cannot be removed from. the premises without being damaged. See Chhour, 46 Cal.App.4 at pp. 282-283. For inverse condemnation, the destruction or damaging of property must have some connection with public use. Aareola v. County of Monterey (2002) 99 Cal.App.4% 722, 742. “A public entity’s maintenance of a public improvement constitutes the 12 constitutionally required public use so long as it is the entity’s deliberate act to undertake the particular plan or manner of maintenance. [Citation.] The necessary finding is that the wrongful act be part of the deliberate design, construction, or maintenance ofthe public improvement. ‘The fundamental justification for inverse liability is that the government, acting in furtherance of public objectives, is taking a calculated risk that private property may be damaged.” [Citation.]” Arreola, at p. 742. “Other cases have also found that inadequate maintenance can support liability in inverse condemnation. Two such cases involved damage to property caused by broken water pipes that the public entities had failed to properly maintain. [Citations.]” Id., at p. 743. In Pacific Bell v. City of San Diego (2000) 81 CalApp4* 596, the “court found that the deliberateness required for inverse condemnation liability ‘was satisfied by a finding that the public improvement, as designed, constructed and maintained, presented an inherent risk of danger to private property and the inherent risk materialized and caused damage. [Citation]” Ameola, at p. 743. In Arreola, the federal governinent instituted a project design to clear a river channel and construct earthen lovees to prevent flooding. The established maintenance plan required that the channel be kept clear of shoals, weeds and wild growth, which would otherwise decrease the water capacity of the channel. Id., at p. 732. Responsibility was then tumed over to the local government, and the channel was kept clear for over 20 years. It was efficient in holding water when large storms occurred. Thereafter the State Department of Fish and Game took over, and intentionally stopped maintaining the channel and allowing vegetation to grow, with a mind that it would preserve river habitat, which the County endorsed. ‘As the channel became more clogged over the next 20 years, any clearing efforts became more expensive, and the County did 13 not or was unable to adequately fund the maintenance of the channel. Id., at p. 734. A large storm occurred, and because the channel lacked capacity (due to the lack of maintenance, the levees also failed, and there was a massive flood over the land and the the highway, causing damage to 300 plaintiffs due to flooding and sediment deposits. The Sixth Appellate District upheld the trial court judgment for inverse condemnation, as “the manner in which the channel was maintained for over 20 years was a deliberate policy of the local public agencies Tesponsible for the Porject. Such a determination is a finding of the. deliberate government action necessary for inverse condemnation liability.” Arreola, at p. 745, There is also aright to just. compensation for any personal property that is “lost” or devalued as a result ofthe condemnation itself (rather than the personal circumstances of the property owner). Baldwin Park, at p. 434. [If the state takes or damages personal property in the exercise of its power of eminent domain, itis obligate pay just compensation to the owners. [Citations: J. The law of California and elsewhere has long recognized compensable consequential damage t property rights which, while not actually “taken”, are > damaged or destrojed by the physical appropriation ofa portion of the owner’s property. [Citations.] There seems to be no logical reason why that principle should not apply with equal force where, in condemning real property, personal property, though not “taken,” is damages or its value destroyed. eee 14 Where the removal or relocation of either tangible or intangible personal property, under the circumstances of the particular case, is made impossible by the.condemnatory act itself, then the owner’s just compensation should not be limited by an arbitrary notion that.in eminent domain. any particular form-or recognized property right is non- compensable. [Citations.] Baldwin Park,at pp. 435-436. In Baldwin Park, the condemned property was used for decades as an auto junkyard. Upon notice of the government’s intention to exercise eminent domain, the owner of the property tried to find another location for the junk yard within the geographic area (12 mile radius), but none existed. “The government agency-refused to, pay the owner for the value of the hundreds of ‘vehicles at the junkyard; and further threatened to charge the owner for the cost of removal thereof if they were not taken - away. “The Court of. ‘Appeal in Baldwin Park held that the loss of this personal property was compensable, because its loss or loss of value was due to the condemnation itself — since the owner was unable to ‘move the inventory to another location in the geographic area. Here, the inability to relocate was the result of the nature of the business and the lack of-any appropriately zoned Property within a reasonably accessible area, Hence the act of condemnation of the only available location directly caused the loss. Id, at p. 437. 15 In Kong, the defendants City and Redevelopment Agency asserted that there was no “taking” of the plaintiff's property, because the plaintiff's sublease “naturally expired on its own terms.” Kong, at p. 1038. The Court of Appeal disagreed. Prior to the expiration of the sublease, the City and Agency had already identified the property for acquisition for public Purposes. The government entities acquired the property by eminent domain, and then turned over ownership to an individual (Dr. Moskowitz) who ‘was to be the developer of the property for public purposes. The government entities never filed an eminent domain proceeding against the plaintiff sublessee (or to plaintiff's lessor). Although the government entities issued a formal 90-day notice to vacate to the © plaintiff, as Dr. Moskowitz was not yet ready to build, he allowed plaintiffto continue to stay at and use the-premises. More specifically, Dr. Moskowitz agreed to a one-year lease (providing for a 6 month notice of termination) with the persons holding the Jease, but no new agreement was ever reached with the plaintiff sublessee — plaintiff simply continued to stay at the premises. Dr. Moskowitz then built a casino, but did not need the portion of the property occupied by plaintiff until. five years later. On adate after the date that the original sublease would have expired, Dr. Moskowitz gave 6-month written notice of termination to the lessor and to the sublessee plaintiff. Plaintiff did not voluntarily leave, but was evicted. Moskowitz then demolished the building on the premises, and constructed a parking lot for the casino, The Court of Appeal held that “plaintiff alleged facts sufficient to constitute a taking which terminated plaintiffs sublease”, and that there was a “causal connection between the Agency’s initial acquisition of the premises and plaintiff's displacement from the premises.” Kong, at pp. 1038-1039. The Court of. ‘Appeal held that the acquisition of the property for a public purpose, and the termination ofthe original master 16 lease, effectuated a termination of the sublease — and thus a “taking” the subleascholdér’s property rights. Kong, at p. 1040. Thus, the allegations of the complaint are sufficient to establish a taking of plaintiff's original subleasehold interest and to negate the defendants’ assertion that it did not expire until December 31, 1998. That plaintiff ultimately was not required to vacate the premises until after what would have been the last day of his original sublease does not compel a contrary conclusion. Kong, at p. 1040. Defendant relies upon sn Diego Metropolitan Transit Development Board v. Handlery Hotel Ine. (1999) 73 Cal.App.4" 517, which has no application here. In Handlery Hotel, the Court of Appeal held that a hypothetical expectation of'a future lease or lease renewal is not a compensable property right, where there is no contractual option. The Court of Appeal held that the golf course business owner had no claim for inverse condemnation as it failed to show unreasonable precondemnation conduct by the government agency because there was no showing of unreasonable conduct, and-no interference with the lessee’s use and.enjoyment of its leasehold. The other holding in Handlery involved whether or not there was a right to compensation for Joss of goodwill. The Court is not basing its finding of inverse condemnation upon any hypothetical expectation of lease renewal. Further, as set forth herein, the Court finds unreasonable conduct by Defendant that interfered with the Plaintiff's existing leases and their use and. enjoyment of the marina facilities. There was also the loss of their vessels because the City created a situation were the City knew that Plaintiffs’ vessels could not be moved, 17 and thus would be a loss of property when Defendant deliberately made it impossible to stay. Further,in nKedevelopment Agency 0) in Diego Attisha (2005) 128 Cal.App.4" 357, the Court of Appeal held that the holding in Handlery Hotels is distinguishable and dependent upon its facts: “Handlery does not suggest that when. condemnation caused termination of a lease and the tenant’s entitlementto goodwill is established, evidence of his or her reasonable expectation of a lease renewal is inadmissible as a matter of law in valuing goodwill loss.” ha, at pp. 137-1385 Indeed, the holding in Attisha is that a leasehold owner can get compensation for inverse condemnation, including the value of intangibles. Defendant also relies upon is MarinaInc (2008) 150 Cal.App.4"" 615 by the Second Appellate District. The defendant leased land from the plaintiff County to construct and operate a marina at the harbor. The lease was for 40 years. ‘The defendant built the marina, including landside improvements and boat slips, and subleased the slips to boat owners. At the.end of the lease, the parties were unable to reach agreement on a new lease, and the County intended to take over the marina for itself. The County sued the marina operator to prevent it from removing the improvements, and the defendant counter-sued for inverse condemnation for not-allowing it to take or remove the improvements. Evidence was presented that the prohibition against taking the improvements was due to the fact that the California Coastal 5 “Indeed, in Handlery we noted that while Handlery’s successive short-term lease extensions defined the length of time it reasonably expected to remain in business, ‘thisis not the case where the impending expropriation constituted the sole reason for shortening what would otherwise have been a longer lease term in a well- established and mutually satisfactory lessor-lessee relationship, giving rise to recovery of business losses beyond the expiration of the original lease term,’ [Citations.}’ Attisha, at p. 138. 1 Commission required a coastal development permit to remove the docks and to remove the landside improvements. There was no such requirement when the parties entered into the’ lease decades before. .The County also asserted that the CCC would never allow the demolition of the marina unless there was a planned replacement, Id., at p. 620. So in essence the removal of ‘the improvements was barred by the State. The Court of Appeal, in the 2-1 split decision, held that the “cause” of property damages to the defendant was the restrictions by the State CCC, not the County, and thus no “taking” by the County. Defendant Redwood City selects language form the Channel Islands decision stating that after the expiration of a lease there is no property rights, and that a lease can only be the basis of a breach of contract but not inverse condemnation. The Dissent in Channel Islands points to the multiple cases of established law holding that a leasehold can be the basis of an inverse condemnation case. Channel Islands, dissent at p. 633. This Court chooses to follow those established cases and law, and not Channel Islands to the extent that it is contrary or inconsistent. Redwood City’s Plan to Develop the Land Around Docktown Marina, andto Get Rid of All Leaseholders at Docktown Marina People have been living in residential watercraft at Docktown Marina for decades (since the 1960s). Each of the Plaintiffs and Plaintiffs in Intervention had a live-aboard lease at Docktown Marina while it was managed by an independent harbor master. Specificallyin 1983, the City issued a permit to Fred Earnhardt as the Docktown Marina operator. (See Trial Exhibit #456 at Bates page 13347.) ‘The City owns the water area, and had a license to use the land adjacent to Redwood Creek as part of the Docktown Marina, including parking and dock access, a 19 harbormaster office, restrooms and laundry facilities for tenants, and the Peninsula Yacht Club. The City Manager testi