Preview
a
Michelle Marchetta Kenyon (SBN 127969) Exempt from Filing Fee Pursuant to
E-mail: mkenyon@bwslaw:com Government Code § 6103
Dylan J. Crosby (SBN 299536)
E-mail: derosby@bwslaw.com
Kevin D. Siegel (SBN 194787)
E-mail: ksiegel@bwslaw.com
BURKE, WILLIAMS & SORENSEN, LLP
FILED
1901 Harrison Street, Suite 900 SAN MATEO COUNTY
Oakland, CA 94612-3501 FEB 18 2018
Tel: 510.273.8780 Fax: 510.839.9104
eee
Attorneys for Defendant es
CITY OF REDWOOD CITY
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN MATEO
10
WPAa 05387
11
Menrndan of Points and Authorities in Supp
FRANCESCA FAMBROUGH, CHRIS Case No. 17CIV0538'
il | | | l mit i
12
TAVENNER, NINA PESCHCKE-
13 KOEDT, EMILIO DIAZ, DAN [CLASS ACTION]
SLANKER, DAWN SLANKER,
14 BRENDA SMITH, THUMPER SMITH, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF CITY’S
15 Plaintiff, GENERAL AND SPECIAL DEMURRERS
TO COMPLAINT
16 Vv.
Date: March 16, 2018
17 CITY OF REDWOOD CITY, Time: 2:00 p.m.
Dept: 2
18 Defendant.
Action Filed: November 22, 2017
19
Assigned for All Purposes to
20 Hon. Marie S. Weiner, Dept. 2
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‘OAKLAND,
TABLE OF CONTENTS
Page
INTRODUCTION
IL. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
B Procedural History
TL LAW AND ARGUMENT
A. Demurrer Standard...
B The Complaint Cannot Proceed as a Class Action Because: (1) the
Purported Class Is Not Ascertainable; and @) Common Questions, of Law
or Fact Do Not Predominate...
1 Plaintiffs’ Purported Class Is Not. Ascertainable: tt Tnoludes
Individuals Who Were Not Live-Aboard Residents at the Time the
10 Docktown Plan Was Adopted
11 There Is No Community of Interest: Common Question of Law or
Fact Do Not Predominate
12 Plaintiffs’ Causes of Action Are Independently Defective
13 1 First Cause of Action for Violation of Relocation Assistance Laws
Fails
14 2. Second Cause of Action for Inverse Condemnation Fails seneeeenenensereeneeee 10
15 3 Third Cause of Action for Declaratory Relief Is Subject to General
and Special Demurrers 11
16 a. The Declaratory Relief Claim Seeks Improper Relief. 12
17 b. The Declaratory Relief Claim Fails to Name the State Lands
Commission, an Indispensable Party .... 13
18 D. This Matter Should Be Stayed Pending Resolution of Several Related
Cases 14
IV CONCLUSION 15
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BURKE, WILLIAMS & ei-
SORENSEN, LLP
ATTORNEYS AT LAW.
OaKLAND
TABLE OF AUTHORITIES
Page(s)
State Cases
B & P Development Corp. v. City of Saratoga
(1986) 185 Cal.App.3d 949
Bautista v. State
(2011) 201 Cal.App.4th 716 12
Beaty v. Imperial Irrigation Dist.
(1986) 186 Cal.App.3d 897... 10, 11
9 Beckstead v. Superior Court
10 (1971) 21 Cal.App.3d 780.
11 Bi-Rite Meat & Provisions Co. y. Redevelopment Agency of City of Hawaiian
Gardens
12 (2007) 156 Cal. App.4th 1419 wes
13 Bozaich v. State of California
(1973) 32 Cal.App.3d 688 »7
14
Breidert v. Southern Pac. Co.
15
(1964) 61 Cal.2d 659 10
16
Breneric Associates v. City of Del Mar
17 (1998) 69 Cal.App.4th 166
18 Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal.4th 1004
19
City of Mountain View v. Superior Court
20 (1975) 54 Cal.App.3d 72
21
City of Pasadena v. Cohen
22 (2014) 228 Cal.App.4th 1461 ... 12
23 City of San Jose v. Superior Court
(1974) 12 Cal.3d 447 .
24
Colberg, Inc. v. State ex rel. Dept. of Public Works
25 (1967) 67 Cal.2d 408
26
County of Ventura v. Channel Islands Marina, Inc.
(2008) 159 Cal.App.4th 615 10
27
28
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‘SORENSEN, LLP
ArroeNeys AT Law MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL
‘OAKLAND DEMURRERS TO COMPLAINT
Customer Co. y. City of Sacramento
(1995) 10 Cal.4th 368 10
Department of Fish and Game v. Superior Court
(2011) 197 Cal.App.4th 1323
People ex rel, Garamendi v. American Autoplan, Inc.
(1993) 20 Cal.App.4th 760 14
Golden Gate Water Ski Club v. County of Contra Costa
(2008) 165 Cal.App.4th 249 10
Harper v. 24 Hour Fitness, Inc.
(2008) 167 Cal.App.4th 966
Kennedy v. Baxter Healthcare Corp.
10 (1996) 43 Cal.App.4th 799
ll Linder y. Thrift Oil Co.
(2000) 23 Cal.4th 429
12
Marks v. Whitney
13 (1971) 6 Cal.3d 251
14 McKenney v. Purepac Pharmaceutical Co
15 (2008) 167 Cal.App.4th 72
16 Miller v. Bank of America, N.A
(2013) 213 Cal.App.4th 1
17
Newell v. State Farm Gen. Ins. Co.
18 (2004) 118 Cal.App.4th 1094
19 Pacific Outdoor Advertising Co. v. City of Burbank
20 (1978) 86 Cal.App.3d 5 1
21 Peter Kiewit Sons’ Co. v. Richmond Redevelopment Agency
(1986) 178 Cal.App.3d 435
22
Pinnacle Holdings, Inc. v. Simon
23 (1995) 31 Cal.App.4th 1430
24 Plant Insulation Co. v. Fibreboard Corp.
25
(1990) 224 Cal.App.3d 781. 14
26 Real Estate Analytics, LLC v. Vallas
(2008) 160 Cal.App.4th 463
27
San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc.
28 (1999) 73 Cal.App.4th 517 11
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Save Our Bay, Inc. v. San Diego Unified Port Dist.
(1996) 42 Cal.App.4th 686 13
Selby Realty Co. v. City of Buenaventura
(1973) 10 Cal.3d 110 12
Smith v. Municipal Court
(1988) 202 Cal.App.3d 685.
Stephens v. Perry
(1982) 134 Cal.App.3d 748...csssceuee 7,8
Superior Strut & Hanger Co. v. Port of Oakland
(1977)72 Cal.App.3d at 987, 999...
9
Tejon Real Estate, LLC y. City of Los Angeles
10 (2014) 223 Cal-App.4th 149 12
11 Thompson v. Automobile Club of Southern California
(2013) 217 Cal.App.4th 719
12
Tucker v. Pacific Bell Mobile Services
13 (2012) 208 Cal.App.4th 201 .
14 Washington Mutual Bank, FA v. Superior Court
15 (2001) 24 Cal.4th 906
16 Zetterberg v. State Dept. of Public Health
(1974) 43 Cal.App.3d 657 12
17
Federal Statutes
18
42 USC § 4621(a)(1)
19
42 USC §§ 4621 et seq.
20
State Statutes
21
California Relocation Assistance Law (“CRAL”) passim
22
23
24
25
26
27
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OAKLAND.
Code Civ. Proc.
5389 (b)(8)B)
§ 430.10(a)
a
13
§ 430.10(c) 14
§ 430.10(d) 13
§ 430.10(e) 4,7, 12
§ 430.41.
§ 430.41(b)
§ 1094.
Gov. Code
§ 7260(c)(1)@)~i),
§ 7260(0)(1)(A)...
9
Pub. Resources Code
10 §§ 6009-6009.
§ 6009(a) sees
11
§§ 6009(b)-(c),
12 §§ 6009. 1(a)-(b)... 12
13 State Regulations
14 25 C.C.R. 6088...
15 Other Authorities
16 California Constitution........... 12
17 California Rules of Court, Rule 3.110(d).........0+
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SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL
ATTORNEYS AT LAW DEMURRERS TO COMPLAINT
OaKLAND
Defendant City of Redwood City (“City”) respectfully submits this memorandum of
points and authorities in support of its general and special demurrers (“Demutrers) to Plaintiffs’
Class Action Complaint (“Complaint”).
L INTRODUCTION
Plaintiffs’ Complaint purports to challenge, in a class action, the City’s approval of a plan
to close the Docktown Marina and to provide discretionary financial and advisory assistance to
displaced tenants (“Docktown Plan”). The Complaint, which purports to allege claims for denial
of state and federal relocation assistance, inverse condemnation, and declaratory relief, must be
dismissed for myriad reasons. As an overarching matter, the Complaint fails due to the lack of
10 (1) an ascertainable class and (2) common questions of fact or law among the purported class
ll members. As to the former, the Complaint puts forth a class that includes a individuals who have
12 no right to recovery because they were not even living at the marina at the time the Docktown
13 Plan was approved. As to the latter, there are no common questions of fact or law when the
14 alleged claims require individualized analyses of liability and damages. Here, Plaintiffs’ claims
15 for relocation assistance and inverse condemnation each require individualized analysis, as to
16 liability and the amount of monetary relief, if any, owed. As a result, Complaint must be
17 dismissed.
18 In addition, each purported cause of action independently fails. The First Cause of Action
19 for denial of California and federal relocation assistance fails because the need to provide state
20 and federal relocation assistance is not triggered by the City’s approval of the Docktown Plan.
21 The state relocation assistance regulations only apply to termination of tenancies which are the
22 product of a City’s acquisition of property or a public project. That is not the case here as the
23 closure is mandated by the Public Trust Doctrine and the City’s Granting Statutes, and the City
24 had the legal right to terminate Plaintiff's” tenancies pursuant to their leases. Similarly, federal
25 relocation assistance regulations do-not apply because approval of the Docktown Plan was
26 undertaken neither by the federal government nor with federal financial assistance.
27 Nor can Plaintiffs state a claim for inverse condemnation as the termination of the tenants’
28 leases does not equate to a property interest for which compensation is entitled. Rather,
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Docktown residents” rights as to possession and compensation are governed by terms of their
individual leases and nothing else.
Plaintiffs’ Third Cause of Action for Declaratory Relief must also be dismissed because it
improperly challenges the City’s adoption and implementation of the Docktown Plan which
would require this Court to enter an order infringing on the City and State’s executive and
legislative discretion in violation of the separation of powers doctrine. It would also impede the
rights of the State Lands Commission (“SLC”), as trustee and administrator of the State’s public
8 trust lands, including those at Docktown. This Court in a related matter has already sustained the
9 City’s demurrers to an almost identical declaratory relief claim on the same grounds.
10 Finally, even if the Complaint is not dismissed, this action should be stayed pursuant to
11 the rule of exclusive concurrent jurisdiction pending adjudication of several pending and related
12 actions filed prior to the instant action. At a minimum there are two pending administrative writ
13 challenges which contain many of the same plaintiffs and similar claims. As such, even the Court
14 chooses not to dismiss this action, it should be stayed until those prior actions can be adjudicated.
15 i. FACTUAL AND PROCEDURAL BACKGROUND
16 A. Factual Background.
17 In 1945, the State Legislature conveyed the Docktown portion of Redwood Creek to the
18 City (“Granting Statutes”). (Request for Judicial Notice [RJN], Exh. A.) As a trustee of these
19 lands, the City must ensure that use of these lands is in accordance with the Granting Statutes,
20 State Lands Commission (“SLC”) policies, and the Public Trust Doctrine. (Granting Statues,
21 §§ 1(a)-(c); see also Pub. Resources Code §§ 6009-6009.1.) The SLC has advised the City that
22 residential use at Docktown was unlawful, pursuant to the City’s Granting Statutes and the
23 Public Trust Doctrine. (See RJN, Exhs. B-D.)
24 On December 12, 2016, the City Council adopted the Docktown Plan, which provides the
25 process for termination of residential uses at Docktown. (See Resolution 1550 attaching
26 Docktown Plan, RJN, Exh. E) In furtherance of the Docktown Plan, the City began terminating
27 tenancies at Docktown in May 2017. Each of the tenancies at Docktown is subject to a
28 Liveaboard Rental Agreement (“LAR”). (See Declaration of Aaron J. Aknin attached as RIN,
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Exh. I, see also Plaintiffs’ LARs, RJN, Exh. J.) The LAR executed by each Docktown Tenant
provides for an initial 1-year term. (LAR, § 3; see also RJN, Exh. J.) Thereafter, the tenancy
becomes month-to-month subject to the City’s right to terminate the tenancy at any time with 60
J
days-notice to the resident. (LAR, § 4.A.)
Pursuant to the Docktown Plan and the LARs, residents have two options — relocate their
dwelling and all of their personal belongings or accept, if eligible, the City’s offer to purchase
their dwelling. (See Docktown Plan; see also January 8, 2018, Staff Report [Jan. 8 Staff Report],
p. 2, RJN Ex. H.) Although under no federal or state legal obligation to do so, the Docktown
9 Plan provides for advisory and financial relocation assistance to eligible Docktown’s residents.
10 (Docktown Plan, p.6 [“persons impacted by relocation of Households at Docktown with a
ll reasonable relocation process and schedule, relocation advisory assistance, and a benefits
12 program to eligible Tenants and Subtenants.”]; see also pp. 2, 33.) Docktown’s residents are
13 “not obligated to sell their vessel to the City.” (See Docktown Plan, p. 6; Jan. 8 Staff Report, p.
14 2.) As such, under the Docktown Plan and LARs, Plaintiffs have no legal right to continue
15 tenancy at Docktown.
16 B. Procedural History.
17 On November 29, 2017, Plaintiffs commenced this class action against the City.! The
18 Complaint states causes of action for California Relocation Assistance Law (“CRAL”)
19 (Complaint, {J 27-31), Inverse Condemnation (Complaint, {| 32-36), and Declaratory Relief
20 (Complaint, 37-41)2 Plaintiffs allege they are current residents of Docktown (Complaint, ff 1-
21 6) and define their class to include “all individuals who were live-aboard residents of Docktown
22 Marina on or before December 12, 2016, when the City released the Docktown Plan and whether
23
24 ' There are now five cases related to the City’s approval and implementation of the
Docktown Plan. Four have been deemed related — San Mateo County Superior Court Case Nos.
25 17CIV00267 (“CEQA Action”), 17CIV00316 (“Jurisdiction Action”), 17CIV04680
(“Frambrough Action”), 17CTV05387 (“Sole Action”). (See RJN Exhs. M-P.)
26
? Through stipulation pursuant to California Rules of Court, rule 3.110(), and a
27 continuance pursuant to Code of Civil Procedure section 430.41(b), the City’s time to respond to
the Complaint was extended up to and including February 14, 2018. (Declaration of Dylan J.
28 Crosby filed and served herewith (“Crosby Decl.”), 14. 7.)
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owner or renter” (Complaint, { 20 [italics added]?
i. LAW AND ARGUMENT.
A. Demurrer Standard.
Demurrers for failure to state a cause of action, or for lack of subject matter jurisdiction,
are commonly referred to as general demurrers. All other grounds for demurrer are referred to as
special demurrers. (See, e.g., McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th
72, 77; Code Civ. Proc. § 430.10(a) & (e).) In evaluating a demurrer, allegations in the complaint
are generally accepted as true unless they are contradicted by judicially noticeable facts. (B & P
Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 953.) A court should,
10 however, reject a pleading’s “contentions, deductions or conclusions of fact or law.” (Breneric
11 Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180.)
12 B. The Complaint Cannot Proceed as a Class Action Because: (1) the Purported Class
Is Not Ascertainable; and (2) Common Questions of Law or Fact Do Not
13 Predominate.
14 A general demurrer is the proper mechanism to challenge class actions. (See Linder v.
15 Thrift Oil Co. (2000) 23 Cal.4th 429, 440 [“nothing prevents a court from weeding out legally
16 meritless suits prior to certification via a defendant's demurrer or pretrial motion”].) A demurrer
17 to a class action is proper if the complaint fails to allege facts sufficient to show (1) an
18 ascertainable class of plaintiffs, or (2) questions of law and fact which are common to the
19 class.” (Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 784; see also Kennedy v. Baxter
20 Healthcare Corp. (1996) 43 Cal.App.4th 799, 813.) The Complaint establishes neither, as
21 discussed below.
22 1. Plaintiffs’ Purported Class Is Not Ascertainable: It Includes
Individuals Who Were Not Live-Aboard Residents at the Time the
23 Docktown Plan Was Adopted.
24 Plaintiffs’ alleged class is not ascertainable because it includes persons who were not
25
3 In compliance with section 430.41 of the Code of Civil Procedure, the City met and
26 conferred with Plaintiffs in an attempt to reach an informal resolution regarding the Complaint’s
demurrable issues. (Crosby Decl., ff] 5-10.) Despite detailed communications between the
27 parties, the City and Plaintiffs were unable to resolve their dispute about the deficiencies of the
Complaint. (Crosby Decl., {{ 9-10.)
28
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‘OAKLAND DEMURRERS TO COMPLAINT
tenants when the City approved the Docktown Plan or are not currently tenants. A class ““‘is
ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common
characteristics sufficient to allow a member of that group to identify himself as having a right to
recover based on the description.”” (Harper v. 24 Hour Fitness, Inc. (2008) 167 Cal.App.4th 966,
977 [quoting Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 14].) In
contrast, a class is not ascertainable when the “proposed definition is overbroad and the plaintiff
offers no means by which only those class members who have claims can be identified from those
who should not be included in the class. [citations.]” (Miller v. Bank of America, N.A. (2013) 213
Cal.App.4th 1, 7.)
10 Plaintiffs’ purported class is defined as “all individuals who were live-aboard residents of
ll Docktown Marina on or before December 12, 2016, when the City released the Docktown Plan
12 and whether owner or renter.” (Complaint, ] 20, emphasis added.) Plaintiffs’ purported class
13 therefore, includes every individual who has ever been a “live-aboard” resident at Docktown prior
14 to the adoption of the Docktown Plan. Plaintiffs lack even a good faith basis to argue that prior
15 tenants could be entitled to any relief under any of the theories in the Complaint. (See Infra, §
16 C.1 [Individuals only have the right to relocation assistance under the California Relocation
17 Assistance Law (Gov. Code § 7260(c)(1)(A)(i)), if they were required to move from real property
18 as a “direct result” of a public program or project]; Thompson y. Automobile Club of Southern
19 California (2013) -217 Cal.App.4th 719, 729 [class not ascertainable because it included a
20 significant number of individuals who had no right to recovery].)
21 2. There Is No Community of Interest: Common Question of Law or Fact
Do Not Predominate.
22
The Complaint also lacks a predominance of common questions and law as to the
23
purported class. Specific “independent factual issues which would have to be separately litigated
24
in this case would be so numerous that the maintenance of the alleged class action could not
25
possibly serve the judicial process or the parties involved.” (Bozaich v. State of California (1973)
26
32 Cal.App.3d 688, 695.) .Here, each tenant’s claim to entitlement to relief (e.g., rent differential,
27
compensation for the value of his or her alleged personal property rights) are so numerous and
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unique that maintenance of a class action is not warranted. (Complaint, {ff 30, 34.)
The community of interest prong requires a predominance of common questions of law or
fact. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) “Predominate
common questions” means that “each member must not be required to individually litigate
numerous and substantial questions to determine his right to recover following the class
judgment; and the issues that may be jointly tried, when compared with those requiring separate
adjudication, must be sufficiently numerous and substantial to make the class action advantageous
to the judicial process and to the litigants.” (Washington Mutual Bank, FA v. Superior Court
9 (2001) 24 Cal.4th 906, 913; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.)'
10 Clear legal precedent confirms that Plaintiffs’ CRAL and inverse condemnation claims are
11 not proper class claims. (See Department of Fish and Game y. Superior Court (2011) 197
12 Cal.App.4th 1323, 1363; City of San Jose, supra 2 Cal.3d at 463.) Whether the implementation
13 of Docktown Plan results in a take of Plaintiffs “property leases,” and the amount of “just
14 compensation” purportedly due, are inherently unique, individualized determinations with respect
15 to each residents tenancy and property. (See Complaint, { 33; see also Smith v. Municipal Court
16 (1988) 202 Cal.App.3d 685 [rented boat slip in marina is real property]; see also Code Civ. Proc.
17 § 17(b)(8)(B); Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 473 [real
18 property is unique].) The California Supreme Court in City of San Jose reached this same
19 conclusion. It held that a class action to recover damages for diminution in market value of real
20 property was not appropriate because parcels of land are unique and it must be determined on an
21 individual basis what the damages are to each parcel of land. (City of San Jose, 2 Cal.3d at 460
22 [“a group of individuals’ rights to recover, each of which is based on a separate set of facts,
23 cannot be determined by a judgment in a class action”].)
24
* Demurrers without leave to amend are properly sustained, where it appears from the face
25 of the complaint that “there is no reasonable possibility plaintiffs could establish a community of
interest among the potential class members and that the individual issues predominate over
26 common questions of law and fact.” (See Tucker v. Pacific Bell Mobile Services (2012) 208
Cal.App.4th 201, 211 [quoting Clausing v. San Francisco Unified School Dist. (1990) 221
27 Cal.App.3d 1224, 1234]; Newell v. State Farm Gen. Ins. Co. (2004) 118 Cal App.4th 1094, 1101—-
1102; Pinnacle Holdings, Inc. v. Simon (1995) 31 Cal.App.4th 1430, 1435.)
28
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Bozaich, 32 Cal.App.3d 688, is directly on point. There, appellants sought to recover
moving and relocation expenses under the CRAL and for inverse condemnation. (Id. at 694-95.)
The Court “concluded appellants’ lawsuit does not qualify as a class action” because “(yt is
apparent that the right of each individual to recover money damages against the [city] is based
necessarily on a separate set of facts applicable to him only.” (Id. at 695.) Specific “independent
factual issues which would have to be separately litigated in this case would be so numerous that
the maintenance of the alleged class action could not possibly serve the judicial process or the
parties involved.” (Ibid.) These questions include:
what was the nature of the claimant's ownership in a particular
parcel taken; what relocation and moving expenses were incurred
10 by the claimants; were the moving and relocation expenses incurred
as a direct and proximate consequence of the taking; were any
ll previous payments made to or advantageous settlements bestowed
upon an individual who is now included as a member of the class;
12 was the same legal issue litigated in a separate eminent domain
proceeding between the state and a member of the class; could it
13 have been litigated; what affirmative defenses does the state have
against each individual claimant?
14
(Ibid.) Like in Bozaich, independent factual issues of fact and law in this matter “are so
15
numerous that the maintenance of the alleged class action could not possibly serve the judicial
16
process or the parties involved.” (Jbid.) Therefore, dismissal of Plaintiffs’ Class Action
17
Complaint is warranted.
18
Cc. Plaintiffs’ Causes of Action Are Independently Defective.
19
Even if Plaintiffs could proceed by class actions, each cause of action is defective.
20
1. First Cause of Action for Violation of Relocation Assistance Laws
21 Fails.
22 Plaintiffs’ First Cause of Action attempts to assert that Plaintiffs are entitled to relocation
23 assistance under both the state and federal relocation assistance statutes. (See Complaint, §{ 28-
24 30.)° This is incorrect as a matter of law. (Code Civ. Proc. § 430.10(e).) The CRAL only applies
25 to a public-agency’s termination of a landlord-tenant relationship which is not due to acquisition
26 of property or a public project. (Stephens v. Perry (1982) 134 Cal.App.3d 748, 756.) Federal
27 5 Plaintiffs’ CRAL claim appears to make a claim for both state and federal relocation
assistance. (Compare Complaint, J 29-30 [citing CRAL]; to § 30 [citing URA].)
28
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relocation assistance is not required where, as here, the public agency’s actions were not
“undertaken by a Federal agency or with Federal financial assistance.” (42 USC § 4621(a)(1).)°
The CRAL requires a public agency to provide relocation assistance to persons it
displaces as a direct result of either (1) the agency’s acquisition of property or (2) the agency’s
rehabilitation, demolition, or other displacing activity pursuant to an agency project. (See Gov.
Code § 7260(c)(1)(i)-Gi).) The CRAL does not apply absent a causal connection between the
public agency’s acquisition or project and the displacement. (Peter Kiewit Sons’ Co. v. Richmond
Redevelopment Agency (1986) 178 Cal.App.3d 435, 444.) Indeed, a public agency’s termination
9 of a landlord-tenant relationship which is not due to acquisition of property or a public project
10 does not trigger the CRAL. (Stephens v. Perry (1982) 134 Cal.App.3d 748, 756 [“plaintiffs are
11 not being displaced as a result of the acquisition of real property for a public use or a written
12 order to vacate by a public entity for a public use but rather are being displaced as the result of the
13 termination of the lessor-sublessee relationship”].)’ Thus, Plaintiffs are not entitled to relocation
14 assistance under the CRAL.*
15 Rather, Plaintiffs’ rights are subject to the Public Trust Doctrine and the Granting Statutes.
16 Under these laws, Plaintiffs only have a legal right to possession of the slips if and to the extent
V7 their possession is lawful. (See Granting Statutes; Pub. Resources Code’ § 6009(a) [delineating
18
19 ® The federal Uniform Relocation Assistance and Real Property Acquisition Policies for
Federal and Federally Assisted Programs Act (“URA”), 42 USC §§ 4621 ef seq., applies only to
20 “programs or projects undertaken by a Federal agency or with Federal financial assistance that is
caused by a number of activities, including rehabilitation, demolition, code enforcement, and
21 acquisition.” (42 USC § 4621(a)(1).)
7 Plaintiffs’ CRAL claim is not ripe as to a majority of the alleged class has yet to vacate
22 of the displaced
Docktown. “[The operative date for eligibility under CRAL is the moving date
person.” (Superior Strut & Hanger Co. v. Port of Oakland (1977)72 Cal.App.3d at 987, 999; See
23 real property”).
Gov. Code. § 7260(c)(1)(A) [CRAL only applies to a “person who moves from
24 As of January 8, 2018, there are still 43 individuals or families residing at Docktown. (See Jan 8
Staff Report, p. 2.) Additionally, Plaintiffs failed to alleged they filed any claim for relocation
25 assistance, a perquisite to the filing of this suit. (See 25 C.C.R. 6088; see also Bi-Rite Meat &
Provisions Co. v. Redevelopment Agency of City of Hawaiian Gardens (2007) 156 Cal.App.4th
26 1419, 1430-32.)
8 Plaintiffs’ proper remedy for wrongful denial of relocation payments under CRAL is by
27 way of administrative mandamus in superior court under Code of Civil Procedure section 1094.5.
(City of Mountain View v. Superior Court (1975) 54 Cal.App.3d 72, 82.)
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permissible uses of public trust lands].) The Public Trust Doctrine and Granting Statutes do not
authorize residential use at Docktown. More specifically, Section 6009(a) only permits public
trust lands to be used for “statewide public purposes, including commerce, navigation, fisheries,
and other recognized uses, and for preservation in their natural state.” No authority has ever
“recognized” private residential use to be a permissible use of trust lands under the Public Trust
Doctrine. In contrast, relevant authorities, including the U.S. Supreme Court, have explicitly
found that private residential uses are not permitted on public trust lands. (See Illinois Central R.
R. Co., 146 U. S. 387, 452; Marks v. Whitney (1971) 6 Cal.3d 251, 259; Colberg, Inc. v. State ex
9 rel. Dept. of Public Works (1967) 67 Cal.2d 408, 417,)° Accordingly, the City adopted the
10 Docktown Plan to bring Docktown into compliance with the law, not to acquire any property
11 rights or to pursue a local or federally funded public project.
12 Moreover, the City is not obligated to provide state or federal relocation assistance
13 because the leases were on a month-to-month basis. Prior to 2013, a private party operated
14 Docktown and allowed residential use by “liveaboard” tenants. (Complaint, { 9; Resolution
15 1550, p. 5; Docktown Plan, p. 1; February 13, 2013 [Feb. 13] Staff Report, p. 1, RIN, Exh. F.) In
16 2013, following the private operator’s intent to discontinue their operations, the City assumed
17 operations and maintenance of Docktown so as to avoid immediate displacement of tenants.
18 (Complaint, J 9; see also Feb. 13 Staff Report, pp. 1-2)'° The City entered into LARs with the
19 residential users of Docktown. At the time of adoption of the Docktown all of the LARs were all
20 on a month-to month basis. (LAR, §§ 3-4.A; see also RJN Exh. J.) As a result, Plaintiffs lacked
21 any right to continue residency and thus cannot claim relocation assistance under federal or state
22 law.
23 Accordingly, demurrer should be sustained to the First Cause of Action both because
24 Plaintiffs have no legal right to continued occupancy of Docktown and the state and federal
25
26 ° The issue of whether the Public Trust Doctrine permits private residential use on public
trust lands has been extensively briefed in the CEQA Action.
27 © The private party had terminated all leases with residents and terminated the revocable
permit with the City and lease with the private landside owners. (Feb. 13 Staff Report, p. 1.)
28
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relocation assistance acts do not apply.
2. Second Cause of Action for Inverse Condemnation Fails.
Plaintiffs Second Cause of Action fails to state of a cause of action because the City’s act
to “undertake the closure of the Marina” does not deprive Plaintiffs of all “economically viable
use of their property rights.” (Complaint, | 10, 34.) An inverse condemnation acti
Preview
a Michelle Marchetta Kenyon (SBN 127969) Exempt from Filing Fee Pursuant to E-mail: mkenyon@bwslaw:com Government Code § 6103 Dylan J. Crosby (SBN 299536) E-mail: derosby@bwslaw.com Kevin D. Siegel (SBN 194787) E-mail: ksiegel@bwslaw.com BURKE, WILLIAMS & SORENSEN, LLP FILED 1901 Harrison Street, Suite 900 SAN MATEO COUNTY Oakland, CA 94612-3501 FEB 18 2018 Tel: 510.273.8780 Fax: 510.839.9104 eee Attorneys for Defendant es CITY OF REDWOOD CITY 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 WPAa 05387 11 Menrndan of Points and Authorities in Supp FRANCESCA FAMBROUGH, CHRIS Case No. 17CIV0538' il | | | l mit i 12 TAVENNER, NINA PESCHCKE- 13 KOEDT, EMILIO DIAZ, DAN [CLASS ACTION] SLANKER, DAWN SLANKER, 14 BRENDA SMITH, THUMPER SMITH, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CITY’S 15 Plaintiff, GENERAL AND SPECIAL DEMURRERS TO COMPLAINT 16 Vv. Date: March 16, 2018 17 CITY OF REDWOOD CITY, Time: 2:00 p.m. Dept: 2 18 Defendant. Action Filed: November 22, 2017 19 Assigned for All Purposes to 20 Hon. Marie S. Weiner, Dept. 2 21 22 23 24 25 26 27 28 BURKE, WILLIAMS & OAK #4836-6211-5929 v8 -1- SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ATTORNEYS AT Law DEMURRERS TO COMPLAINT ‘OAKLAND, TABLE OF CONTENTS Page INTRODUCTION IL. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background B Procedural History TL LAW AND ARGUMENT A. Demurrer Standard... B The Complaint Cannot Proceed as a Class Action Because: (1) the Purported Class Is Not Ascertainable; and @) Common Questions, of Law or Fact Do Not Predominate... 1 Plaintiffs’ Purported Class Is Not. Ascertainable: tt Tnoludes Individuals Who Were Not Live-Aboard Residents at the Time the 10 Docktown Plan Was Adopted 11 There Is No Community of Interest: Common Question of Law or Fact Do Not Predominate 12 Plaintiffs’ Causes of Action Are Independently Defective 13 1 First Cause of Action for Violation of Relocation Assistance Laws Fails 14 2. Second Cause of Action for Inverse Condemnation Fails seneeeenenensereeneeee 10 15 3 Third Cause of Action for Declaratory Relief Is Subject to General and Special Demurrers 11 16 a. The Declaratory Relief Claim Seeks Improper Relief. 12 17 b. The Declaratory Relief Claim Fails to Name the State Lands Commission, an Indispensable Party .... 13 18 D. This Matter Should Be Stayed Pending Resolution of Several Related Cases 14 IV CONCLUSION 15 20 21 22 23 24 25 26 27 28 BURKE, WILLIAMS & ei- SORENSEN, LLP ATTORNEYS AT LAW. OaKLAND TABLE OF AUTHORITIES Page(s) State Cases B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949 Bautista v. State (2011) 201 Cal.App.4th 716 12 Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897... 10, 11 9 Beckstead v. Superior Court 10 (1971) 21 Cal.App.3d 780. 11 Bi-Rite Meat & Provisions Co. y. Redevelopment Agency of City of Hawaiian Gardens 12 (2007) 156 Cal. App.4th 1419 wes 13 Bozaich v. State of California (1973) 32 Cal.App.3d 688 »7 14 Breidert v. Southern Pac. Co. 15 (1964) 61 Cal.2d 659 10 16 Breneric Associates v. City of Del Mar 17 (1998) 69 Cal.App.4th 166 18 Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 19 City of Mountain View v. Superior Court 20 (1975) 54 Cal.App.3d 72 21 City of Pasadena v. Cohen 22 (2014) 228 Cal.App.4th 1461 ... 12 23 City of San Jose v. Superior Court (1974) 12 Cal.3d 447 . 24 Colberg, Inc. v. State ex rel. Dept. of Public Works 25 (1967) 67 Cal.2d 408 26 County of Ventura v. Channel Islands Marina, Inc. (2008) 159 Cal.App.4th 615 10 27 28 BURKE, WILLIAMS & OAK #4836-6211-5929 v8 -H- ‘SORENSEN, LLP ArroeNeys AT Law MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ‘OAKLAND DEMURRERS TO COMPLAINT Customer Co. y. City of Sacramento (1995) 10 Cal.4th 368 10 Department of Fish and Game v. Superior Court (2011) 197 Cal.App.4th 1323 People ex rel, Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760 14 Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249 10 Harper v. 24 Hour Fitness, Inc. (2008) 167 Cal.App.4th 966 Kennedy v. Baxter Healthcare Corp. 10 (1996) 43 Cal.App.4th 799 ll Linder y. Thrift Oil Co. (2000) 23 Cal.4th 429 12 Marks v. Whitney 13 (1971) 6 Cal.3d 251 14 McKenney v. Purepac Pharmaceutical Co 15 (2008) 167 Cal.App.4th 72 16 Miller v. Bank of America, N.A (2013) 213 Cal.App.4th 1 17 Newell v. State Farm Gen. Ins. Co. 18 (2004) 118 Cal.App.4th 1094 19 Pacific Outdoor Advertising Co. v. City of Burbank 20 (1978) 86 Cal.App.3d 5 1 21 Peter Kiewit Sons’ Co. v. Richmond Redevelopment Agency (1986) 178 Cal.App.3d 435 22 Pinnacle Holdings, Inc. v. Simon 23 (1995) 31 Cal.App.4th 1430 24 Plant Insulation Co. v. Fibreboard Corp. 25 (1990) 224 Cal.App.3d 781. 14 26 Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463 27 San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. 28 (1999) 73 Cal.App.4th 517 11 Burke, WILLIAMS & OAK #4836-6211-5929 v8 -il- SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ATTORNEYS AT LAW DEMURRERS TO COMPLAINT OAKLAND Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686 13 Selby Realty Co. v. City of Buenaventura (1973) 10 Cal.3d 110 12 Smith v. Municipal Court (1988) 202 Cal.App.3d 685. Stephens v. Perry (1982) 134 Cal.App.3d 748...csssceuee 7,8 Superior Strut & Hanger Co. v. Port of Oakland (1977)72 Cal.App.3d at 987, 999... 9 Tejon Real Estate, LLC y. City of Los Angeles 10 (2014) 223 Cal-App.4th 149 12 11 Thompson v. Automobile Club of Southern California (2013) 217 Cal.App.4th 719 12 Tucker v. Pacific Bell Mobile Services 13 (2012) 208 Cal.App.4th 201 . 14 Washington Mutual Bank, FA v. Superior Court 15 (2001) 24 Cal.4th 906 16 Zetterberg v. State Dept. of Public Health (1974) 43 Cal.App.3d 657 12 17 Federal Statutes 18 42 USC § 4621(a)(1) 19 42 USC §§ 4621 et seq. 20 State Statutes 21 California Relocation Assistance Law (“CRAL”) passim 22 23 24 25 26 27 28 BURKE, WILLIAMS & OAK #4836-6211-5929 v8 -iv- SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ATTORNEYS AT Law DEMURRERS TO COMPLAINT OAKLAND. Code Civ. Proc. 5389 (b)(8)B) § 430.10(a) a 13 § 430.10(c) 14 § 430.10(d) 13 § 430.10(e) 4,7, 12 § 430.41. § 430.41(b) § 1094. Gov. Code § 7260(c)(1)@)~i), § 7260(0)(1)(A)... 9 Pub. Resources Code 10 §§ 6009-6009. § 6009(a) sees 11 §§ 6009(b)-(c), 12 §§ 6009. 1(a)-(b)... 12 13 State Regulations 14 25 C.C.R. 6088... 15 Other Authorities 16 California Constitution........... 12 17 California Rules of Court, Rule 3.110(d).........0+ 18 19 20 21 22 23 24 25 26 27 28 Burke, WILLIAMS & OAK #4836-6211-5929 v8 -V- SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ATTORNEYS AT LAW DEMURRERS TO COMPLAINT OaKLAND Defendant City of Redwood City (“City”) respectfully submits this memorandum of points and authorities in support of its general and special demurrers (“Demutrers) to Plaintiffs’ Class Action Complaint (“Complaint”). L INTRODUCTION Plaintiffs’ Complaint purports to challenge, in a class action, the City’s approval of a plan to close the Docktown Marina and to provide discretionary financial and advisory assistance to displaced tenants (“Docktown Plan”). The Complaint, which purports to allege claims for denial of state and federal relocation assistance, inverse condemnation, and declaratory relief, must be dismissed for myriad reasons. As an overarching matter, the Complaint fails due to the lack of 10 (1) an ascertainable class and (2) common questions of fact or law among the purported class ll members. As to the former, the Complaint puts forth a class that includes a individuals who have 12 no right to recovery because they were not even living at the marina at the time the Docktown 13 Plan was approved. As to the latter, there are no common questions of fact or law when the 14 alleged claims require individualized analyses of liability and damages. Here, Plaintiffs’ claims 15 for relocation assistance and inverse condemnation each require individualized analysis, as to 16 liability and the amount of monetary relief, if any, owed. As a result, Complaint must be 17 dismissed. 18 In addition, each purported cause of action independently fails. The First Cause of Action 19 for denial of California and federal relocation assistance fails because the need to provide state 20 and federal relocation assistance is not triggered by the City’s approval of the Docktown Plan. 21 The state relocation assistance regulations only apply to termination of tenancies which are the 22 product of a City’s acquisition of property or a public project. That is not the case here as the 23 closure is mandated by the Public Trust Doctrine and the City’s Granting Statutes, and the City 24 had the legal right to terminate Plaintiff's” tenancies pursuant to their leases. Similarly, federal 25 relocation assistance regulations do-not apply because approval of the Docktown Plan was 26 undertaken neither by the federal government nor with federal financial assistance. 27 Nor can Plaintiffs state a claim for inverse condemnation as the termination of the tenants’ 28 leases does not equate to a property interest for which compensation is entitled. Rather, Burke, WILLIAMS & OAK #4836-6211-5929 v8 -1- ‘SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ATTORNEYS AT Law DEMURRERS TO COMPLAINT ‘OAKLAND Le Docktown residents” rights as to possession and compensation are governed by terms of their individual leases and nothing else. Plaintiffs’ Third Cause of Action for Declaratory Relief must also be dismissed because it improperly challenges the City’s adoption and implementation of the Docktown Plan which would require this Court to enter an order infringing on the City and State’s executive and legislative discretion in violation of the separation of powers doctrine. It would also impede the rights of the State Lands Commission (“SLC”), as trustee and administrator of the State’s public 8 trust lands, including those at Docktown. This Court in a related matter has already sustained the 9 City’s demurrers to an almost identical declaratory relief claim on the same grounds. 10 Finally, even if the Complaint is not dismissed, this action should be stayed pursuant to 11 the rule of exclusive concurrent jurisdiction pending adjudication of several pending and related 12 actions filed prior to the instant action. At a minimum there are two pending administrative writ 13 challenges which contain many of the same plaintiffs and similar claims. As such, even the Court 14 chooses not to dismiss this action, it should be stayed until those prior actions can be adjudicated. 15 i. FACTUAL AND PROCEDURAL BACKGROUND 16 A. Factual Background. 17 In 1945, the State Legislature conveyed the Docktown portion of Redwood Creek to the 18 City (“Granting Statutes”). (Request for Judicial Notice [RJN], Exh. A.) As a trustee of these 19 lands, the City must ensure that use of these lands is in accordance with the Granting Statutes, 20 State Lands Commission (“SLC”) policies, and the Public Trust Doctrine. (Granting Statues, 21 §§ 1(a)-(c); see also Pub. Resources Code §§ 6009-6009.1.) The SLC has advised the City that 22 residential use at Docktown was unlawful, pursuant to the City’s Granting Statutes and the 23 Public Trust Doctrine. (See RJN, Exhs. B-D.) 24 On December 12, 2016, the City Council adopted the Docktown Plan, which provides the 25 process for termination of residential uses at Docktown. (See Resolution 1550 attaching 26 Docktown Plan, RJN, Exh. E) In furtherance of the Docktown Plan, the City began terminating 27 tenancies at Docktown in May 2017. Each of the tenancies at Docktown is subject to a 28 Liveaboard Rental Agreement (“LAR”). (See Declaration of Aaron J. Aknin attached as RIN, BURKE, WILLIAMS & OAK #4836-6211-5929 v8 -2- ‘SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ‘ATroRNeYs AT LAW OAKLAND, DEMURRERS TO COMPLAINT Exh. I, see also Plaintiffs’ LARs, RJN, Exh. J.) The LAR executed by each Docktown Tenant provides for an initial 1-year term. (LAR, § 3; see also RJN, Exh. J.) Thereafter, the tenancy becomes month-to-month subject to the City’s right to terminate the tenancy at any time with 60 J days-notice to the resident. (LAR, § 4.A.) Pursuant to the Docktown Plan and the LARs, residents have two options — relocate their dwelling and all of their personal belongings or accept, if eligible, the City’s offer to purchase their dwelling. (See Docktown Plan; see also January 8, 2018, Staff Report [Jan. 8 Staff Report], p. 2, RJN Ex. H.) Although under no federal or state legal obligation to do so, the Docktown 9 Plan provides for advisory and financial relocation assistance to eligible Docktown’s residents. 10 (Docktown Plan, p.6 [“persons impacted by relocation of Households at Docktown with a ll reasonable relocation process and schedule, relocation advisory assistance, and a benefits 12 program to eligible Tenants and Subtenants.”]; see also pp. 2, 33.) Docktown’s residents are 13 “not obligated to sell their vessel to the City.” (See Docktown Plan, p. 6; Jan. 8 Staff Report, p. 14 2.) As such, under the Docktown Plan and LARs, Plaintiffs have no legal right to continue 15 tenancy at Docktown. 16 B. Procedural History. 17 On November 29, 2017, Plaintiffs commenced this class action against the City.! The 18 Complaint states causes of action for California Relocation Assistance Law (“CRAL”) 19 (Complaint, {J 27-31), Inverse Condemnation (Complaint, {| 32-36), and Declaratory Relief 20 (Complaint, 37-41)2 Plaintiffs allege they are current residents of Docktown (Complaint, ff 1- 21 6) and define their class to include “all individuals who were live-aboard residents of Docktown 22 Marina on or before December 12, 2016, when the City released the Docktown Plan and whether 23 24 ' There are now five cases related to the City’s approval and implementation of the Docktown Plan. Four have been deemed related — San Mateo County Superior Court Case Nos. 25 17CIV00267 (“CEQA Action”), 17CIV00316 (“Jurisdiction Action”), 17CIV04680 (“Frambrough Action”), 17CTV05387 (“Sole Action”). (See RJN Exhs. M-P.) 26 ? Through stipulation pursuant to California Rules of Court, rule 3.110(), and a 27 continuance pursuant to Code of Civil Procedure section 430.41(b), the City’s time to respond to the Complaint was extended up to and including February 14, 2018. (Declaration of Dylan J. 28 Crosby filed and served herewith (“Crosby Decl.”), 14. 7.) Burke, WILLIAMS & OAK #4836-6211-5929 v8 SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL “ATTORNEYS AT LAW DEMURRERS TO COMPLAINT OaKLAND, owner or renter” (Complaint, { 20 [italics added]? i. LAW AND ARGUMENT. A. Demurrer Standard. Demurrers for failure to state a cause of action, or for lack of subject matter jurisdiction, are commonly referred to as general demurrers. All other grounds for demurrer are referred to as special demurrers. (See, e.g., McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77; Code Civ. Proc. § 430.10(a) & (e).) In evaluating a demurrer, allegations in the complaint are generally accepted as true unless they are contradicted by judicially noticeable facts. (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 953.) A court should, 10 however, reject a pleading’s “contentions, deductions or conclusions of fact or law.” (Breneric 11 Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180.) 12 B. The Complaint Cannot Proceed as a Class Action Because: (1) the Purported Class Is Not Ascertainable; and (2) Common Questions of Law or Fact Do Not 13 Predominate. 14 A general demurrer is the proper mechanism to challenge class actions. (See Linder v. 15 Thrift Oil Co. (2000) 23 Cal.4th 429, 440 [“nothing prevents a court from weeding out legally 16 meritless suits prior to certification via a defendant's demurrer or pretrial motion”].) A demurrer 17 to a class action is proper if the complaint fails to allege facts sufficient to show (1) an 18 ascertainable class of plaintiffs, or (2) questions of law and fact which are common to the 19 class.” (Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 784; see also Kennedy v. Baxter 20 Healthcare Corp. (1996) 43 Cal.App.4th 799, 813.) The Complaint establishes neither, as 21 discussed below. 22 1. Plaintiffs’ Purported Class Is Not Ascertainable: It Includes Individuals Who Were Not Live-Aboard Residents at the Time the 23 Docktown Plan Was Adopted. 24 Plaintiffs’ alleged class is not ascertainable because it includes persons who were not 25 3 In compliance with section 430.41 of the Code of Civil Procedure, the City met and 26 conferred with Plaintiffs in an attempt to reach an informal resolution regarding the Complaint’s demurrable issues. (Crosby Decl., ff] 5-10.) Despite detailed communications between the 27 parties, the City and Plaintiffs were unable to resolve their dispute about the deficiencies of the Complaint. (Crosby Decl., {{ 9-10.) 28 Burke, WILLIAMS & OAK #4836-6211-5929 v8 -4- SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ATTORNEYS AT LAW ‘OAKLAND DEMURRERS TO COMPLAINT tenants when the City approved the Docktown Plan or are not currently tenants. A class ““‘is ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself as having a right to recover based on the description.”” (Harper v. 24 Hour Fitness, Inc. (2008) 167 Cal.App.4th 966, 977 [quoting Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 14].) In contrast, a class is not ascertainable when the “proposed definition is overbroad and the plaintiff offers no means by which only those class members who have claims can be identified from those who should not be included in the class. [citations.]” (Miller v. Bank of America, N.A. (2013) 213 Cal.App.4th 1, 7.) 10 Plaintiffs’ purported class is defined as “all individuals who were live-aboard residents of ll Docktown Marina on or before December 12, 2016, when the City released the Docktown Plan 12 and whether owner or renter.” (Complaint, ] 20, emphasis added.) Plaintiffs’ purported class 13 therefore, includes every individual who has ever been a “live-aboard” resident at Docktown prior 14 to the adoption of the Docktown Plan. Plaintiffs lack even a good faith basis to argue that prior 15 tenants could be entitled to any relief under any of the theories in the Complaint. (See Infra, § 16 C.1 [Individuals only have the right to relocation assistance under the California Relocation 17 Assistance Law (Gov. Code § 7260(c)(1)(A)(i)), if they were required to move from real property 18 as a “direct result” of a public program or project]; Thompson y. Automobile Club of Southern 19 California (2013) -217 Cal.App.4th 719, 729 [class not ascertainable because it included a 20 significant number of individuals who had no right to recovery].) 21 2. There Is No Community of Interest: Common Question of Law or Fact Do Not Predominate. 22 The Complaint also lacks a predominance of common questions and law as to the 23 purported class. Specific “independent factual issues which would have to be separately litigated 24 in this case would be so numerous that the maintenance of the alleged class action could not 25 possibly serve the judicial process or the parties involved.” (Bozaich v. State of California (1973) 26 32 Cal.App.3d 688, 695.) .Here, each tenant’s claim to entitlement to relief (e.g., rent differential, 27 compensation for the value of his or her alleged personal property rights) are so numerous and 28 Burke, WILLIAMS & OAK #4836-6211-5929 v8 -5- ‘SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL Arronneys AT Law DEMURRERS TO COMPLAINT OAKLAND unique that maintenance of a class action is not warranted. (Complaint, {ff 30, 34.) The community of interest prong requires a predominance of common questions of law or fact. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) “Predominate common questions” means that “each member must not be required to individually litigate numerous and substantial questions to determine his right to recover following the class judgment; and the issues that may be jointly tried, when compared with those requiring separate adjudication, must be sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants.” (Washington Mutual Bank, FA v. Superior Court 9 (2001) 24 Cal.4th 906, 913; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.)' 10 Clear legal precedent confirms that Plaintiffs’ CRAL and inverse condemnation claims are 11 not proper class claims. (See Department of Fish and Game y. Superior Court (2011) 197 12 Cal.App.4th 1323, 1363; City of San Jose, supra 2 Cal.3d at 463.) Whether the implementation 13 of Docktown Plan results in a take of Plaintiffs “property leases,” and the amount of “just 14 compensation” purportedly due, are inherently unique, individualized determinations with respect 15 to each residents tenancy and property. (See Complaint, { 33; see also Smith v. Municipal Court 16 (1988) 202 Cal.App.3d 685 [rented boat slip in marina is real property]; see also Code Civ. Proc. 17 § 17(b)(8)(B); Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 473 [real 18 property is unique].) The California Supreme Court in City of San Jose reached this same 19 conclusion. It held that a class action to recover damages for diminution in market value of real 20 property was not appropriate because parcels of land are unique and it must be determined on an 21 individual basis what the damages are to each parcel of land. (City of San Jose, 2 Cal.3d at 460 22 [“a group of individuals’ rights to recover, each of which is based on a separate set of facts, 23 cannot be determined by a judgment in a class action”].) 24 * Demurrers without leave to amend are properly sustained, where it appears from the face 25 of the complaint that “there is no reasonable possibility plaintiffs could establish a community of interest among the potential class members and that the individual issues predominate over 26 common questions of law and fact.” (See Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 211 [quoting Clausing v. San Francisco Unified School Dist. (1990) 221 27 Cal.App.3d 1224, 1234]; Newell v. State Farm Gen. Ins. Co. (2004) 118 Cal App.4th 1094, 1101—- 1102; Pinnacle Holdings, Inc. v. Simon (1995) 31 Cal.App.4th 1430, 1435.) 28 BurKE, WILLIAMS & OAK #4836-6211-5929 v8 -6- SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ATTORNEYS AT Law DEMURRERS TO COMPLAINT Oaxtano Bozaich, 32 Cal.App.3d 688, is directly on point. There, appellants sought to recover moving and relocation expenses under the CRAL and for inverse condemnation. (Id. at 694-95.) The Court “concluded appellants’ lawsuit does not qualify as a class action” because “(yt is apparent that the right of each individual to recover money damages against the [city] is based necessarily on a separate set of facts applicable to him only.” (Id. at 695.) Specific “independent factual issues which would have to be separately litigated in this case would be so numerous that the maintenance of the alleged class action could not possibly serve the judicial process or the parties involved.” (Ibid.) These questions include: what was the nature of the claimant's ownership in a particular parcel taken; what relocation and moving expenses were incurred 10 by the claimants; were the moving and relocation expenses incurred as a direct and proximate consequence of the taking; were any ll previous payments made to or advantageous settlements bestowed upon an individual who is now included as a member of the class; 12 was the same legal issue litigated in a separate eminent domain proceeding between the state and a member of the class; could it 13 have been litigated; what affirmative defenses does the state have against each individual claimant? 14 (Ibid.) Like in Bozaich, independent factual issues of fact and law in this matter “are so 15 numerous that the maintenance of the alleged class action could not possibly serve the judicial 16 process or the parties involved.” (Jbid.) Therefore, dismissal of Plaintiffs’ Class Action 17 Complaint is warranted. 18 Cc. Plaintiffs’ Causes of Action Are Independently Defective. 19 Even if Plaintiffs could proceed by class actions, each cause of action is defective. 20 1. First Cause of Action for Violation of Relocation Assistance Laws 21 Fails. 22 Plaintiffs’ First Cause of Action attempts to assert that Plaintiffs are entitled to relocation 23 assistance under both the state and federal relocation assistance statutes. (See Complaint, §{ 28- 24 30.)° This is incorrect as a matter of law. (Code Civ. Proc. § 430.10(e).) The CRAL only applies 25 to a public-agency’s termination of a landlord-tenant relationship which is not due to acquisition 26 of property or a public project. (Stephens v. Perry (1982) 134 Cal.App.3d 748, 756.) Federal 27 5 Plaintiffs’ CRAL claim appears to make a claim for both state and federal relocation assistance. (Compare Complaint, J 29-30 [citing CRAL]; to § 30 [citing URA].) 28 Burke, WILLIAMS & OAK #4836-6211-5929 v8 -7- SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ATTORNEYS AT LAW DEMURRERS TO COMPLAINT ‘Oaxuann relocation assistance is not required where, as here, the public agency’s actions were not “undertaken by a Federal agency or with Federal financial assistance.” (42 USC § 4621(a)(1).)° The CRAL requires a public agency to provide relocation assistance to persons it displaces as a direct result of either (1) the agency’s acquisition of property or (2) the agency’s rehabilitation, demolition, or other displacing activity pursuant to an agency project. (See Gov. Code § 7260(c)(1)(i)-Gi).) The CRAL does not apply absent a causal connection between the public agency’s acquisition or project and the displacement. (Peter Kiewit Sons’ Co. v. Richmond Redevelopment Agency (1986) 178 Cal.App.3d 435, 444.) Indeed, a public agency’s termination 9 of a landlord-tenant relationship which is not due to acquisition of property or a public project 10 does not trigger the CRAL. (Stephens v. Perry (1982) 134 Cal.App.3d 748, 756 [“plaintiffs are 11 not being displaced as a result of the acquisition of real property for a public use or a written 12 order to vacate by a public entity for a public use but rather are being displaced as the result of the 13 termination of the lessor-sublessee relationship”].)’ Thus, Plaintiffs are not entitled to relocation 14 assistance under the CRAL.* 15 Rather, Plaintiffs’ rights are subject to the Public Trust Doctrine and the Granting Statutes. 16 Under these laws, Plaintiffs only have a legal right to possession of the slips if and to the extent V7 their possession is lawful. (See Granting Statutes; Pub. Resources Code’ § 6009(a) [delineating 18 19 ® The federal Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs Act (“URA”), 42 USC §§ 4621 ef seq., applies only to 20 “programs or projects undertaken by a Federal agency or with Federal financial assistance that is caused by a number of activities, including rehabilitation, demolition, code enforcement, and 21 acquisition.” (42 USC § 4621(a)(1).) 7 Plaintiffs’ CRAL claim is not ripe as to a majority of the alleged class has yet to vacate 22 of the displaced Docktown. “[The operative date for eligibility under CRAL is the moving date person.” (Superior Strut & Hanger Co. v. Port of Oakland (1977)72 Cal.App.3d at 987, 999; See 23 real property”). Gov. Code. § 7260(c)(1)(A) [CRAL only applies to a “person who moves from 24 As of January 8, 2018, there are still 43 individuals or families residing at Docktown. (See Jan 8 Staff Report, p. 2.) Additionally, Plaintiffs failed to alleged they filed any claim for relocation 25 assistance, a perquisite to the filing of this suit. (See 25 C.C.R. 6088; see also Bi-Rite Meat & Provisions Co. v. Redevelopment Agency of City of Hawaiian Gardens (2007) 156 Cal.App.4th 26 1419, 1430-32.) 8 Plaintiffs’ proper remedy for wrongful denial of relocation payments under CRAL is by 27 way of administrative mandamus in superior court under Code of Civil Procedure section 1094.5. (City of Mountain View v. Superior Court (1975) 54 Cal.App.3d 72, 82.) 28 BURKE, WILLIAMS & OAK #4836-6211-5929 v8 -8- SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ATTORNEYS AT LAW DEMURRERS TO COMPLAINT OaKtanD permissible uses of public trust lands].) The Public Trust Doctrine and Granting Statutes do not authorize residential use at Docktown. More specifically, Section 6009(a) only permits public trust lands to be used for “statewide public purposes, including commerce, navigation, fisheries, and other recognized uses, and for preservation in their natural state.” No authority has ever “recognized” private residential use to be a permissible use of trust lands under the Public Trust Doctrine. In contrast, relevant authorities, including the U.S. Supreme Court, have explicitly found that private residential uses are not permitted on public trust lands. (See Illinois Central R. R. Co., 146 U. S. 387, 452; Marks v. Whitney (1971) 6 Cal.3d 251, 259; Colberg, Inc. v. State ex 9 rel. Dept. of Public Works (1967) 67 Cal.2d 408, 417,)° Accordingly, the City adopted the 10 Docktown Plan to bring Docktown into compliance with the law, not to acquire any property 11 rights or to pursue a local or federally funded public project. 12 Moreover, the City is not obligated to provide state or federal relocation assistance 13 because the leases were on a month-to-month basis. Prior to 2013, a private party operated 14 Docktown and allowed residential use by “liveaboard” tenants. (Complaint, { 9; Resolution 15 1550, p. 5; Docktown Plan, p. 1; February 13, 2013 [Feb. 13] Staff Report, p. 1, RIN, Exh. F.) In 16 2013, following the private operator’s intent to discontinue their operations, the City assumed 17 operations and maintenance of Docktown so as to avoid immediate displacement of tenants. 18 (Complaint, J 9; see also Feb. 13 Staff Report, pp. 1-2)'° The City entered into LARs with the 19 residential users of Docktown. At the time of adoption of the Docktown all of the LARs were all 20 on a month-to month basis. (LAR, §§ 3-4.A; see also RJN Exh. J.) As a result, Plaintiffs lacked 21 any right to continue residency and thus cannot claim relocation assistance under federal or state 22 law. 23 Accordingly, demurrer should be sustained to the First Cause of Action both because 24 Plaintiffs have no legal right to continued occupancy of Docktown and the state and federal 25 26 ° The issue of whether the Public Trust Doctrine permits private residential use on public trust lands has been extensively briefed in the CEQA Action. 27 © The private party had terminated all leases with residents and terminated the revocable permit with the City and lease with the private landside owners. (Feb. 13 Staff Report, p. 1.) 28 BURKE, WILLIAMS & OAK #4836-6211-5929 v8 -9- SORENSEN, LLP MEMORANDUM OF POINTS AND AUTHORITIES ISO CITY’S GENERAL AND SPECIAL ATTORNEYS AT LAW DEMURRERS TO COMPLAINT ‘OaxLanD relocation assistance acts do not apply. 2. Second Cause of Action for Inverse Condemnation Fails. Plaintiffs Second Cause of Action fails to state of a cause of action because the City’s act to “undertake the closure of the Marina” does not deprive Plaintiffs of all “economically viable use of their property rights.” (Complaint, | 10, 34.) An inverse condemnation acti