1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
Doug Michie CBN: 98541 1056 E. Meta Street #103 Ventura, CA 93001 [email protected] Tel: 805-641-1000 Fax: 805-258-7272
Attorney for Plaintiff, OKSANA MICHIE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
OKSANA MICHIE, on behalf of herself and others similarly situated,
Plaintiffs, vs.
GAVIN CHRISTOPHER NEWSOM, in his official capacity as Governor of the State of California,
and
TANI G. CANTIL-SAKAUYE, in her official capacity as Chair of the California Judicial Council,
Defendants.
))))))))))))))))
Case No.:
CIVIL COMPLAINT FOR
1) VIOLATIONS OF ARTICLE 1 OFTHE U.S. CONSTITUTION
2) VIOLATIONS OF THE TAKINGSCLAUSE – 42 U.S.C. §1983
3) VIOLATIONS OF SUBSTANTIVEDUE PROCESS – 42 U.S.C. §1983
)
Article I, Section 10. Powers prohibited of States.
“No State shall … pass any … Law impairing the Obligation of Contracts.”
Amendment V
“…nor shall private property be taken for public use, without just compensation.”
“The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Armstrong v. United States, 364 U.S. 40, 49 (1960)
2:20-cv-4213
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 1 of 25 Page ID #:1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
COMPLAINT
1. By and through her undersigned counsel Plaintiff, OKSANA MICHIE, brings this
action for declaratory and injunctive relief, and for monetary damages, on behalf of herself and
all other similarly situated persons, companies and entities (collectively, “Plaintiffs”), and against
GAVIN CHRISTOPHER NEWSOM, in his official capacity as Governor of the State of
California (“Governor Newsom” or “Governor”), and TANI G. CANTIL-SAKAUYE, in her
official capacity as Chair of the California Judicial Council (“Chair Cantil-Sakauye” or “Chair”).
The Governor and the Chair have, without compensation, impaired the rental contracts between
the Plaintiffs and their tenants. The laws have effectuated a taking of the property of Plaintiffs and
have impacted the livelihoods of individuals across the State, forcing Plaintiffs to allow tenants to
live in their property free of rent, meanwhile requiring them to pay and or incur property tax,
insurance, mortgage payments and to pay for the maintenance on said property, without rental
income to offset said expenses. These uncompensated seizures violate the Takings Clause of the
Fifth Amendment, made applicable to States through the Fourteenth Amendment, and also violate
well-established notions of Substantive and Procedural Due Process. Additionally, the laws passed
prohibiting Plaintiffs from evicting their non-rent paying tenants, as allowed per the terms of their
contracts with their tenants, is a bold violation of the Constitution’s clear prohibition of laws by
States impairing the obligation of contracts. Plaintiffs respectfully request that this Court (1)
declare the Governor’s and the Chair’s actions unconstitutional, and (2) order the payment of just
compensation.
2. On March 4, 2020, Governor Newsom issued his proclamation that a state of
emergency exists in California due to COVID-19. A true copy of this proclamation is attached as
Exhibit 1.
3. Governor Newsom on March 27th then issued his Executive Order N-37-20
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 2 of 25 Page ID #:2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
(“free-rent order”), which among other things, allows tenants to stop payment of rent, whether or
not they are impacted by the novel coronavirus pandemic (“COVID-19”), for the public purpose
of providing housing for members of the public who would otherwise join the ranks of California’s
numerous and swelling homeless population. A true copy of this order is attached as Exhibit 2.
4. In avoidance of his obligations as the duly elected representative of the citizens
of California, the Governor sidestepped his obligation to address issues caused by the COVID-19
crises by authorizing a non-elected body, the California Judicial Council (“CJC”), to make his
political decisions for him. He did this by issuing his Executive Order N-38-20, passing
omnipotent power to the CJC, purportedly authorizing them to take Plaintiffs property from them
for public purposes, and impairing Plaintiffs’ contracts with the tenants occupying their property.
A true copy of this order is attached as Exhibit 3.
5. The Chair Cantil-Sakauye, in conjunction with the other members of the non-
elected California Judicial Council (“CJC”), have passed an Emergency Rule 1 [Unlawful
Detainers] (“Rule 1”) which prohibits courts from issuing summons on an unlawful detainer
complaint until 90 days after the state of emergency related to COVID-19 is lifted by the
Governor. A true copy of this Order is attached as Exhibit 4.
6. The Governor, through his free-rent order, and the Chair and her CJC, through
their Rule 1, have placed the cost of these orders – issued for the benefit of select members of the
public – squarely upon the shoulders of private individuals and their families, and has failed to
justly compensate the affected parties for these takings undertaken for their benefit to the public.
Without extending constitutionally required just compensation to Plaintiffs and those similarly
situated, these orders jeopardize the sustainability of many California businesses and the
livelihoods of individuals. In support of this demand for relief, Plaintiffs states as follows:
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 3 of 25 Page ID #:3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
INTRODUCTION
7. Plaintiffs are individuals and businesses from across the State of California, and
are members of a class adversely affected by the Governor’s and the Chair’s actions – individuals
and businesses ordered to allow tenants to live rent-free in their properties, and whose contract
terms authorizing eviction for non-payment of rent have been impaired by the State.
8. In the wake of a fast-moving disease outbreak, Plaintiffs stand on the precipice of
economic collapse as a direct result of the actions taken by Governor Newsom and the Chair Cantil-
Sakauye in response to COVID-19.
9. As noted above, the Governor issued the free-rent order, Executive Order N-37-
20, on March 27, 2020 [Exhibit 2], extending the time a tenant can answer an eviction complaint
by 60 additional days, in essence providing the tenant 60 additional rent-free days at the expense
of Plaintiffs. Also, on March 27, 2020, allegedly to protect California’s public health, safety and
welfare, but additionally to prevent the ranks of California’s substantial homeless population from
swelling, the Governor issued his unconstitutional Executive Order N-38-20 [Exhibit 3} stating,
among other things:
“To the extent Government Code section 68115 or any other provision of law imposes or implies a limitation on the subject matter the Chairperson of the Judicial Council may address via emergency order or statewide rule issued pursuant to section 68115, that limitation is suspended.”
10. This second order placed omnipotent powers in the hands of the Chair Cantil-
Sakauye and the CJC, an individual and a body that were not elected to make political decisions
and that have acted unconstitutionally by passing Emergency Rule 1 [Exhibit 4] impairing the
contractual terms of Plaintiffs, preventing them from evicting non-paying tenants for an
ADDITIONAL 90 days after they have suffered the effects of the Governor’s 60 day free-rent
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 4 of 25 Page ID #:4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
order, and any extension he chooses to unilaterally issue.
11. These Orders mandate that all landlords allow their non-paying tenants to
continue to live in their properties rent-free, and that they not continue eviction actions that were
then pending or planned.
12. The Governor claimed his authority to enact the orders by citing a set of broad
emergency statutes which he said authorized his actions to stem the spread of COVID-19 across
California.
13. This suit accepts as fact that the Governor took action for a public purpose. The
World Health Organization and the Centers for Disease Control and Prevention (“CDC”) have
declared COVID-19 a “public health emergency of international concern”, and the U.S.
Department of Health and Human Services (“HHS”) Secretary has declared that COVID-19
creates a “public health emergency”.
14. The Governor’s and Chair’s actions were not designed to serve Plaintiffs’ private
interests, nor did they identify any private interest served by their actions.
15. The Governor’s and Chair’s Orders halted all economic activity for Plaintiffs, the
people and businesses covered by their orders. The COVID-19 free-rent orders “make it
commercially impracticable” to use the property belonging to the Plaintiffs for any economically
beneficial purpose, and inflict “very nearly the same effect for constitutional purposes as
appropriating or destroying [the property as a whole].” Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 414–15 (1922); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480U.S. 470, 484–
85 (1987) (explaining that regulatory taking occurs when the government action “makes it impossible for
petitioners to profitably engage in their business, or that there has been undue interference with their
investment-backed expectations”).
16. Despite issuing the COVID-19 free-rent orders for a readily-apparent public
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 5 of 25 Page ID #:5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
purpose, the Governor and the Chair did not provide compensation for those who suffered
substantial – and perhaps total – diminution of value in their property interests as a result. The
COVID-19 free-rent orders by their operative provisions deprived Plaintiffs of all economically
beneficial use of their Property and deprived Plaintiffs of their livelihoods for an undefined time
period.
17. The Orders constitute a regulatory taking implemented for a recognized public
purpose, and therefore the failure to pay just compensation contravenes the Takings Clause of the
Fifth and Fourteenth Amendments. See Penn Central Transportation Co. v. City of New York, 438
U.S. 104 (1978); Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); Horne v. Dep't of Agric.,
576 U.S. 350, 135 S. Ct. 2419, 2426 (2015). Further, the orders impair the private contracts
between Plaintiffs and their tenants, in direct contravention of Article 1 of the U.S. Constitution.
JURISDICTION AND VENUE
18. This Court has jurisdiction to hear this case under 28 U.S.C. §§ 1331, 1343(a)(3)-
(4), which confers original jurisdiction on federal district courts to hear suits alleging the violation
of rights and privileges under the United States Constitution.
19. This is a class action where Plaintiffs seek relief under 28 U.S.C. §§ 2201-2202,
42 U.S.C. §§ 1983 and 1988, Article 1 of the U.S. Constitution, and the Fifth and Fourteenth
Amendments. U.S. CONST. Art. 1, AMEND. V, XIV; see also Fed. R. Civ. P. 23.
20. Venue is proper under 28 U.S.C. § 1391(b), because Oksana Michie’s properties
that are the subject of this action are in this District, and a substantial part of the events giving rise
to Plaintiffs’ claim occurred in this district.
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 6 of 25 Page ID #:6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
PARTIES
21. Oksana Michie (“Oksana”) is a named Plaintiff and an adult individual and citizen
of California, who resides in Ventura County, California.
22. Defendant Governor GAVIN CHRISTOPHER NEWSOM, named in his official
capacity, is the Governor of the State of California and is responsible for enforcing the laws of the
State, and is charged with implementing policy through executive orders, including the Executive
Orders issued on March 27, 2020.
23. TANI G. CANTIL-SAKAUYE, in her official capacity as Chair of the California
Judicial Council, is responsible for enforcing and implementing laws, regulations and policies for
the operation of the Courts of the State of California. She was not elected to make political
decisions, nor was the California Judicial Council, an appointed body. She and her Council are
charged with implementing policy through emergency rules of court, including the Emergency
Rule 1 which is a subject of this action.
FACTS
COVID-19 Pandemic and Governor Newsom’s Emergency Order on March 4, 2020
24. On March 4, 2020, Governor Newsom issued his proclamation that a state of
emergency exists in California due to COVID-19.
25. The World Health Organization (“WHO”) and the Center for Disease Control and
Prevention (“CDC”) identified COVID-19 as a “public health emergency of international
concern.”
26. Likewise, the U.S. Department of Health and Human Services (“HHS”) declared
that COVID-19 has created a public health emergency.
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 7 of 25 Page ID #:7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
27. As the perambulatory language of the COVID-19 emergency order indicate,
Governor Newsom relies upon a number of different sources to justify the executive action he
undertook to address the threat of COVID-19.
28. Subsequent executive orders further attempt to allow the Governor to dodge his
responsibility to Plaintiffs, by unconstitutionally providing the Chair and her CJC omnipotent
powers to take Plaintiffs’ property without compensation and to impair Plaintiffs’ contracts in
complete disregard to the Constitution’s prohibition of these very acts.
29. The Governor’s free rent order was effective for 60 days. However, the Chairs
further free rent rule extends this period of free rent an additional 90 days! Moreover, these
additional 90 days are not from the end of the Governor’s current 60-day free rent period, but from
the end of the Governor’s declared state of emergency – a period of time that is uncertain and that
could possibly continue for years.
30. Before the actions of the Governor and the Chair, landlords had the burden under
state law of undergoing an unlawful detainer court proceeding before they could evict non-paying
tenants per the terms of their contracts. This process can take many months, with a median time
from service of the notice-to-quit to regaining possession of their property of three months. A
number of tenants declare bankruptcy near the end of this process, requiring landlords to seek
relief form the bankruptcy court ordered stay to continue the unlawful detainer, adding another
median time of three months to the procees. Finally, after regaining possession of their property,
landlords must then bear the expense of cleaning, repairing, and then advertising and leasing their
property, adding another median time of a month before they finally receive another dollar of rent.
31. The orders and rule complained of herein add nearly one-half year more of no
rent to this already costly and lengthy processes. The lost rent breaks down as follows:
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 8 of 25 Page ID #:8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
Court time to evict & regain possession: 3 months Time to obtain release of bankruptcy stay: 3 months Governor’s free-rent period: 2 months Judicial Council’s free-rent period: 3 months Clean up, advertise and lease up: 1 month Period of free rent for tenant: 12 months/1 year Additional costs to property owner: Eviction court costs, Eviction lawyer Bankruptcy lawyer Clean up and maintenance, Advertising costs
32. Notably absent from the free-rent orders, or any other executive orders issued by
Governor Newsom or the Chair, is any provision addressing the inherent financial burden inflicted
by the orders on individual and business landlords throughout California – a direct result of the
mandated order allowing Plaintiffs tenants to occupy their property rent free.
33. Notably, there is no end date to the Governor’s emergency proclamation. And
the Chair and her CJC’s Rule :
“… will remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted,” [Exhibit 4].
34. As of the filing of this Complaint, these Orders remain in effect with no end
date in sight.
Oksana Michie
35. Before the free-rent orders, Oksana had spent substantial time and money in
maintaining and improving her three rental properties. She has dutifully paid the State imposed
property taxes on the properties, made mortgage payments, and has taken a financial loss in
evicting a prior tenant who failed to pay rent as agreed, She has pursued her goal of private
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 9 of 25 Page ID #:9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
property ownership with the belief that the real estate laws in California are transparent, and that
the contract terms that she and her tenants agree upon will not be impaired or interfered with by
the State, its Governor, nor by political rules imposed by the Chair. Her goal has been to earn a
living capable of providing for her family by investing her time and money in her rental properties.
36. Now, she is solely concerned with surviving day-to-day and left to wonder
whether she ever will be allowed to exercise her right as owner to determine who can reside in her
property – or if she will still be the owner of the properties once the Governor’s free-rent orders
are finally lifted.
37. The free-rent orders prevent all evictions for at least an additional five months to
purportedly preserve public health, safety and welfare; however, the orders paid no attention to
the substantial and adverse impact the rent-free orders would have on the livelihoods of mom &
pop rental property owners like Oksana and other Class Members.
38. The free-rent orders force Oksana to allow tenants to live in her properties rent
free; countless other California property owners, who are similarly situated – the other Class
Members – suffer the same consequences as the Governor’s free-rent orders prevent them from
exercising their contract rights free-rent orders to evict non-paying tenants, and force them to
allow rent free occupation of their properties.
39. With no revenue coming in, small property owners like Oksana and other Class
Members cannot afford to continue maintaining and paying for their properties, when they are
forced to allow their properties to be occupied without receiving rent.
40. Because of the free-rent orders, Oksana and other Class Members no longer have
a means to enforce rent payments.
41. All Class Members, like Oksana, recognize the exigent nature of the extant public
health emergency; nevertheless, they question why mom & pop rental owners are asked to bear
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 10 of 25 Page ID #:10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
the cost for the measures that the Governor and Chair have determined are necessary to support
public health.
42. Oksana and other Class Members have asked for assistance from the State, but
they have been refused replacement of the rent that they have been prevented from collecting.
43. The free-rent orders in essence will remain in effect “until further notice” which
is terrifying for mom & pop rental owners and other Class Members. They fear the ominous and
looming possibility that – soon – they will be unable to pay their bills or buy food for their families
without receiving rent. Moreover, the State insists that they continue paying property tax on their
properties, and that they continue to maintain the property for their tenants, even though they are
prevented from collecting any rent whatsoever.
44. The longer the free-rent orders remain in effect, and the longer Californians live
without a clear end date for their right to evict non-paying tenants, the greater the fear of economic
ruin becomes for owners like Oksana and other Class Members.
45. It shocks the conscience, and is arbitrary and capricious, to force small mom &
pop owners to privately bear without compensation the cost of the free-rent orders, orders which
were issued for the stated public purpose of slowing the spread of COVID-19 across California,
but also serve the public purpose of preventing the swelling of the ranks of California’s numerous
and growing homeless population.
CLASS ALLEGATIONS
46. Oksana brings this action on behalf of the all Class Members pursuant to
provisions of Federal Rules of Civil Procedure 23 (a), (b)(1), (b)(2) and/or (b)(3). Fed. R. Civ. P.
23(a), (b)(1)-(3).
47. Oksana and Class Members are, as noted above, rental property owners prevented
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 11 of 25 Page ID #:11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
from collecting rent as a result of the free-rent orders.
48. The class consists of all owners who satisfy each of the following criteria:
(a) At the time when the COVID-19 free-rent orders became effective, they were
owners of properties rented or held out for rent to tenants and, thus, impacted
by the COVID-19 free rent orders; and
(b) As a result of the mandated free-rent orders, they are subject to having their
properties occupied against their will by tenants not paying rent or providing
any other form of compensation.
49. Excluded from the class are any property owner acquiring his property after the
March 27th issuance of the free-rent orders. Also excluded from the class are all directors, officers,
employees, parents, affiliates and subsidiaries, their successors, agents, legal representatives, heirs
and assigns, and any persons or entities controlled by any excluded property owner.
50. This class is so numerous that joinder of all members is impractical. The class is
composed possibly millions of rental property owners across the State of California.
51. As the named Plaintiff, Oksana’s claims are typical of the claims of the members
of the Class. All of the claims are based on the same factual and legal theories.
52. Oksana will fairly and adequately protect the interests of the class. She is
committed to litigating this matter vigorously. Oksana has retained counsel to handle her constitutional
claims against government actors, involving questions of substantive and procedural due process and
violations of the Takings Clause. And Article 1 of the Constitution. Neither Oksana nor her counsel have
any interest that might cause them not to pursue this action vigorously.
53. Class certification under Fed. R. Civ. P. 23(b)(1) is appropriate in this action
because prosecuting separate actions by or against individual class members would create a risk
of either:
(a) Inconsistently or varying adjudications with respect to individual
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 12 of 25 Page ID #:12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13
class members that would establish incompatible standards of conduct
for the party opposing class; or
(b) Adjudications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other
members not parties to the individual adjudications or would
substantially impair or impede their ability to protect their interests.
54. Class certification under Fed. R. Civ. P. 23(b)(2) is appropriate in this action
because Governor Newsom and the Chair have acted on grounds that apply generally to the Class
– that is, inter alia, issuance of the COVID-19 free-rent orders – so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.
55. Class certification under Fed. R. Civ. P. 23(b)(3) is appropriate in this action
because there are numerous questions of law and fact which are common to the Class and which
predominate over any questions affecting individual members of the Class, including, without
limitation, the following:
(a) Whether the COVID-19 free-rent orders violated the substantive due
process rights of affected owners by arbitrarily, capriciously and irrationally
interfering with, inter alia, their contract rights [in such a manner that would
shock the conscience. Lowe v. S.E.C., 472 U.S. 181, 228 (1985) (citing Dent
v. West Virginia, 129 U.S. 114, 121-122 (1889)).
56. Indeed, the only individual question appears to be the amount of monetary
damage suffered as a result of the COVID-19 free-rent orders – and thus, just compensation owed
– which is attributable to each Class Member.
57. Class certification under Fed. R. Civ. P. 23(b)(3) is also appropriate in this action
because a class action is superior to other methods for the fair and efficient adjudication of this
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 13 of 25 Page ID #:13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
controversy, in that:
(a) The critical facts and applicable questions of law are identical across
all Class Members, even though the effects of the COVID-19 free-rent orders
may be small to some members of the Class, and establishing whether
Governor Newsom’s actions were unconstitutional is complex, such that
prosecution of individual actions is impractical and not economically feasible;
(b) By contrast, the cumulative damages caused by the COVID-19 free-
rent orders across all Members of the Class is substantial;
(c) Without the class action device, Oksana and Class Members would be
left without a remedy for the wrongful acts alleged, and Defendants’
allegedly unconstitutional actions would be left unchallenged;
(d) The prosecution of separate lawsuits by individual members of the
class would create the risk of inconsistent adjudications with respect
to the individual class members, which would establish incompatible
standards of conduct for the Governor and Chair, making
concentration of the litigation concerning this matter in this Court
desirable; and
(e) No unusual difficulties are likely to be encountered in the
management of this action as a class action.
COUNT I
Oksana and Similarly Situated Class Members v. Defendants
POWERS PROHIBITED STATES—Art 1. Section 10
(COVID-19 Free-Rent Orders Impair the Contracts Between Oksana and Class Members and Their Tenants in Violation of the First Amendment)
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 14 of 25 Page ID #:14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
58. Plaintiffs hereby incorporate by reference the preceding paragraphs as though
fully set forth herein.
59. Never in the modern history of the United States – even in war time – has such a
large swath of the California economy been idled for so long by a government order.
60. Oksana and Class Members have a protected interest in their right to enter into private
contracts without arbitrary State governmental interference. The right to freedom of contract is a
fundamental right protected by the Constitution. There is no rational basis for placing the cost of
housing the homeless on rental property owners, and the State’s restrictions on that right are
subject to strict scrutiny.
61. Rental property owners have a protected fundamental property right to use and enjoy
their property in which they hold a recognized fee simple interest. See MFS, Inc. v. DiLazaro, 771 F.
Supp. 2d 382, 440–41 (E.D. Pa. 2011) (citing DeBlasio v. Zoning Bd. of Adjustment for Twp. of W.
Amwell, 53 F.3d 592, 600 (3d Cir.1995)); see also Horne, 576 U.S. 350, 135 S. Ct. at 2426.
62. The State has passed a law which substantially impairs the Plaintiffs
contractual rights with their tenants.
63. The State has no significant and legitimate purpose behind the regulation
which places the burden of the economic recession squarely and solely on the shoulders of
small rental property owners.
64. The law is unreasonable and not appropriate for its intended purpose. The
law impacts the fundamental right to enter into private contracts specifically recognized in
the Constitution. The destruction of contracts of small rental owners is not rationally related
to a legitimate government interest.
65. Defendants have acted under color of state law with the intent to unlawfully
deprive Oksana and Class Members of their right to contract in violation of Article 1 of the
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 15 of 25 Page ID #:15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16
United States Constitution.
66. Defendants’ actions, including issuance and enforcement of the COVID-19
free rent orders, constitute the official policy, custom, and practices of the State of
California.
67. Therefore, Governor Newsom and the Chair have violated Oksana’s and
other Class Members’ right to enter into private contracts. See also Nashville, C. & St. L.
Ry. v. Walters, 294 U.S. 405, 415 (1935) (concluding that state’s police power was “subject
to the constitutional limitation that it may not be exerted arbitrarily or unreasonably,” such
as requiring a railroad to bear the expense associated with construction of a public road and
moving train tracks for the road).
68. The Governor and Chair have arbitrarily, irrationally and capriciously
“impinge[d] upon [Oksana’s] use and enjoyment of [her] property” by, inter alia, requiring
Oksana – and the other Class Members – to allow occupation of their property rent free
indefinitely and to privately bear the burden for such publicly beneficial decisions, which are
aimed at keeping California’s homeless population in check. See DeBlasio, 53 F.3d at 601.
69. The Governor and Chair implemented the COVID-19 free-rent orders for the
purpose of preserving public health, safety and welfare. The implementation of these Orders,
however, caused Oksana and those similarly situated substantial economic harm which they are
being asked to privately bear for a manifest public benefit.
70. Defendants’ intentional, willful and wanton conduct ‘shocks the conscience’ of
all citizens, who fear unchecked government intrusion for arbitrary and capricious ends – even if
such ends are not ill intentioned.
71. In depriving Oksana and other Class Members of their right to contract, the
Defendants have acted intentionally, willfully, wantonly, and with callous and reckless
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 16 of 25 Page ID #:16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
disregard for Plaintiffs’ constitutional rights.
72. As a direct and proximate result of the COVID-19 free-rent orders, Oksana
and other Class Members have and will continue to sustain monetary damages including loss
in the value of their rental property, lost rents, profits, expenses, attorneys’ fees, and other
costs incurred.
COUNT II
Oksana and Similarly Situated Class Members v. All Defendants
VIOLATION OF THE TAKINGS CLAUSE—42 U.S.C. §1983
(COVID-19 Free-Rent Orders Are an Unconstitutional Regulatory Taking of Oksana’s and Class Members’ Property Without Just Compensation in Violation of
the Fifth Amendment’s Takings Clause Incorporated under the Fourteenth Amendment)
73. Plaintiffs hereby incorporate by reference the preceding paragraphs as though
fully set forth herein.
74. The Takings Clause of the Fifth Amendment provides that private property
shall not “be taken for public use, without just compensation.” U.S. CONST. AMEND. V.
75. The Takings Clause “is designed not to limit the governmental interference with
property rights per se, but rather to secure compensation in the event of otherwise proper
interference amounting to a taking.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536–37 (2005)
(quoting First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482
U.S. 304, 315 (1987) (emphasis in original)).
76. The Takings Clause bars government actors “from forcing some people alone
to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).
77. Governor Newsom, in conjunction with the Chair, issued the COVID- 19 free-
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 17 of 25 Page ID #:17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18
rent orders as a means of slowing the spread of the novel coronavirus.
78. Governor Newsom, in conjunction with the Chair, has acted under color of
state law, and the COVID-19 free-rent orders were issued to serve a well-recognized
public purpose by a duly elected state official and his designee.
79. The COVID-19 free-rent orders adversely impacted Oksana and Class
Members’ use of their Real Property to such an extent that, at least temporarily, the Orders
entirely diminished the economically beneficial use of those Properties.
80. During the indefinite period of shutdown, the Orders prohibited all
economically beneficial and profitable uses of Oksana’s Real Property and that of other Class
Members; save bare ownership, the entire bundle of property rights was extinguished.
81. Oksana and Class Members were not permitted to use their Real Property in
any fashion to collect rents; instead, the COVID-19 free-rent orders required that non-paying
tenants be allowed to occupy the Real Property rent free.
82. As a practical matter, the Orders prevented the affected Properties from being
leased, subleased, bought, sold or used for other purposes. Accordingly, the COVID-19 free-rent
orders interfered with the ordinary investment expectations of Oksana and Class Members as
property holders.
83. The Supreme Court “recognized that government regulation of private
property may, in some instances, be so onerous that its effect is tantamount to a direct
appropriation or ouster—and that such ‘regulatory takings’ may be compensable under the
Fifth Amendment.” Lingle, 544 U.S. at 537
84. “The general rule at least is that while property may be regulated to a
certain extent, if regulation goes too far it will be recognized as a taking.” Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393, 415–16 (1922).
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 18 of 25 Page ID #:18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19
85. Governor Newsom’s and the Chair’s COVID-19 free-rent orders “goes
too far” and must “be recognized as a taking.” See id.
86. Otherwise, without just compensation guaranteed by the Takings Clause,
Oksana and all Class Members similarly situated will be privately saddled with the cost of
paying for government action undertaken for the common good.
87. Oksana and Class Members have suffered a complete loss of “all economically
beneficial uses” of their Property while the COVID-19 free-rent orders remain in effect. This complete
loss constitutes a categorical taking of Oksana and Class Members’ ability to collect rent or their
inability to exercise any of their other property rights with regard to their Real Property. See Lucas v.
S.C. Coastal Council, 505 U.S. 1003, 1019 (1992).
88. Oksana and all Class Members who are similarly situated, “ h[ave] been called
upon to sacrifice all economically beneficial uses [for their Properties] in the name of the
common good, that is, to leave [their] propert[ies] economically idle, [they] h[ave] suffered a
taking.” Lucas, 505 U.S. at 1019.
89. In the alternative, under the framework articulated by the Supreme Court in
Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978), the COVID-19 free-
rent orders constitute a taking based upon “the magnitude of [the Orders’] economic impact
and the degree to which [the Orders] interfere[] with legitimate property interests.” Lingle,
544 U.S. 528 at 540.
90. The Supreme Court’s analysis in Penn Central, supra, sets forth the framework
for assessing whether government action is considered a regulatory taking, identifying “several
factors that have particular significance.” Penn Central Transp. Co. v. New York City, 438 U.S.
104 at page 124 (1978):
“On the other hand, if the regulation “fall[s] short of eliminating all economically beneficial use, a taking nonetheless may have occurred,”
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 19 of 25 Page ID #:19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20
Palazzolo [v. Rhode Island], 533 U.S. [606] at 617, 121 S.Ct. 2448[, 150 L.Ed.2d 592 (2001)], and the court looks to three factors to guide its inquiry: (1) “[t]he economic impact of the regulation on the claimant,” (2) “the extent to which the regulation has interfered with distinct investment-backed expectations,” and (3) “the character of the governmental action,” Penn Cent., 438 U.S. at 124, 98 S.Ct. 2646. While these factors provide “important guideposts,” “[t]he Takings Clause requires careful examination and weighing of all the relevant circumstances.” Palazzolo, 533 U.S. at 634, 636, 121 S.Ct. 2448 (O'Connor, J., concurring); see also Tahoe–Sierra, 535 U.S. at 321, 122 S.Ct. 1465 (whether a taking has occurred “depends upon the particular circumstances of the case”); Yee v. City of Escondido, 503 U.S. 519, 523, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) (regulatory takings claims “entail[ ] complex factual assessments”).” Lost Tree Vill. Corp. v. United States, 115 Fed. Cl. 219, 228 (2014) (emphasis added).
91. Since the onset of Governor’s COVID-19 free-rent orders, Oksana and
Class Members have not been permitted to evict non-paying tenants, nor have they been
allowed to use their real Property for any economically profitable use.
92. The Governors’ COVID-19 free-rent orders will in essence remain in effect
until further notice and, as a result, Oksana – and all Class Members similarly situated – are
deprived of the value of their Real Property while the Orders are in effect. The real property
occupied by non-paying tenants are not usable for any other purpose, nor can these affected
properties currently be effectively bought, sold or leased, nor can Oksana’s and Class
Members’ Real Property occupied by non-paying tenants be used to generate income while the
Orders are in effect.
93. The COVID-19 free-rent orders have either entirely drained Oksana and
Class Members’ Property of all economic value during their pendency, or have nearly done so;
in either event, the diminution of value and government interference caused by these Orders is
an unconstitutional taking without just compensation.
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 20 of 25 Page ID #:20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
21
COUNT III
Oksana and Similarly Situated Class Members v. All Defendants
SUBSTANTIVE DUE PROCESS—42 U.S.C. §1983
(COVID-19 Free-Rent Orders Deprives Oksana and Class Members of Life, Liberty and/or
Property without Due Process of Law in Violation of the Fourteenth Amendment)
94. Plaintiffs hereby incorporate by reference the preceding paragraphs as though
fully set forth herein.
95. Oksana and other Class Members have a protected liberty interest in their right
to enter into private contracts free from arbitrary government interference and deprivation. Lowe
v. S.E.C., 472 U.S. 181, 228 (1985) (citing Dent v. West Virginia, 129 U.S. 114, 121-122
(1889)).
96. The COVID-19 free-rent orders instructed all “landlords in California to desist
in eviction of non-paying tenants indefinitely, without providing a mechanism to alleviate the
economic harm to countless Class Members – like Oksana – who have lost their rental income.
97. “‘[S]ubstantive due process’ prevents the government from engaging in
conduct that ‘shocks the conscience,’ ... or interferes with rights ‘implicit in the concept of
ordered liberty[.]’” Salerno, 481 U.S. at 746 (quoting Rochin, 342 U.S. at 172, and Palko, 302
U.S. at 325–326).
98. The COVID-19 free-rent orders, therefore, violate Due Process by
“interfere[ing] with rights ‘implicit in the concept of ordered liberty[.]’” Id.
99. Governor Newsom’s and the Chair’s free-rent orders interfere with the rights
of Oksana and all those Class Members similarly situated by arbitrarily forcing these
individuals to shoulder the financial burden for orders aimed at benefiting the public across the
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 21 of 25 Page ID #:21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
22
entire State.
100. The forced stoppage of the right to evict non-paying tenants has caused
Oksana to lose her livelihood. The same is true of other Class Members.
101. The Governor’s COVID-19 free-rent orders, not only deprived Oksana of her
rental payments – her ability to earn a living with her property – the Orders simultaneously
demanded that she and the Class Members subsidize the public health, safety and welfare of
the State.
102. The Due Process Clause of the Fourteenth Amendment prohibits Governor
Newsom and the Chair from demanding this hefty cost be paid by Oksana and other Class
Members; it is intended to protect individuals from this manner of arbitrary and irrational
government interference.
103. “[T]he substantive component of the Due Process Clause is violated by
executive action only when it can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense.” Lewis, 523 U.S. at 847 (quotations omitted).
104. This interference by the COVID-19 free-rent orders “‘shocks the conscience’
and violates the ‘decencies of civilized conduct.’” See Lewis, 523 U.S. 833, 846–47 (citations
omitted).
105. Requiring owners like Oksana and other Class Members to personally bear
the cost of Governor’s COVID-19 free-rent orders “d[oes] not comport with traditional ideas
of fair play and decency” and therefore violates substantive due process. Breithaupt, 352
U.S. at 435.
106. Defendants’ intentional, willful and wanton conduct ‘shocks the conscience’ of
all citizens, who fear unchecked government intrusion for arbitrary and capricious ends – even if
such ends are not ill intentioned.
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 22 of 25 Page ID #:22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
23
107. In depriving the owners like Oksana and other Class Members of their
protected liberty interests without due process of law, the Defendants have acted intentionally,
willfully, wantonly, and with callous and reckless disregard for the constitutional rights of
Oksana and Class Members.
108. As a direct and proximate result of the COVID-19 free-rent orders, Oksana and
other Class Members have and shall continue to sustain monetary damages including loss in the
value of their property, attorneys’ fees, and other costs incurred.
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs demand judgment in their favor, against Defendants jointly
and severally, and seek relief for:
(1) Compensatory damages adequate to satisfy Oksana and Class Members in
the amount owed as just compensation for the regulatory taking of their Real Property;
(2) Compensatory damages adequate to satisfy Oksana and Class Members in
the amount owed for Defendants’ violations of the Due Process Clause of the Fourteenth
Amendment;
(3) Punitive damages;
(4) A declaratory judgment that issuance and enforcement of the COVID-19 free-
rent orders is an unconstitutional impairment of contracts, in violation of Article 1 of the U.S.
Constitution;
(5) A declaratory judgment that issuance and enforcement of the COVID-19 free-rent
orders is an unconstitutional taking without just compensation, in violation of the Fifth and Fourteenth
Amendments;
(6) A permanent injunction to prohibit Defendants from enforcing the COVID-19
free-rent orders unless, and until, a mechanism is established to provide (a) just compensation
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 23 of 25 Page ID #:23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24
for affected property owners and (b) appellate review of Governor Newsom’s and the Chair’s
orders as to their constitutionality;
(7) An award of costs and expenses, including reasonable attorneys’ fees under 42
U.S.C. § 1988; and
(8) Such other and further relief as this Court deems appropriate.
MICHIE LAW FIRM
By: /s/ Doug Michie Doug Michie, Esquire (CBN 98541) 1056 E Meta St #103 Ventura, CA 93001
Phone: 805-641-1000 Fax: 805-258-7272 Email: [email protected]
Counsel for Plaintiffs
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 24 of 25 Page ID #:24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
25
JURY DEMAND
Plaintiffs demand a jury trial on all counts contained in the Complaint.
MICHIE LAW FIRM
By: /s/ Doug Michie Doug Michie, Esquire (CBN 98541) 1056 E Meta St #103 Ventura, CA 93001
Phone: 805-641-1000 Fax: 805-258-7272 Email: [email protected]
Counsel for Plaintiffs
Case 2:20-cv-04213 Document 1 Filed 05/08/20 Page 25 of 25 Page ID #:25
EXHIBIT 1
Case 2:20-cv-04213 Document 1-1 Filed 05/08/20 Page 1 of 5 Page ID #:26
EXECUTIVE DEPARTMENT STATE OF CALIFORNIA
PROCLAMATION OF A STATE OF EMERGENCY
WHEREAS in December 2019, an outbreak of respiratory illness due to a novel coronavirus ( a disease now known as COVI D-19), was first identified in Wuhan City, Hubei Province, China, and has spread outside of China, impacting more than 75 countries, including the United States; and
WHEREAS the State of California has been working in close collaboration with the national Centers for Disease Control and Prevention (CDC), with the United States Health and Human Services Agency, and with local health departments since December 2019 to monitor and plan for the potential spread of COVID-19 to the United States; and
WHEREAS on January 23, 2020, the CDC activated its Emergency Response System to provide ongoing support for the response to COVID-19 across the country; and
WHEREAS on January 24, 2020, the California Department of Public Health activated its Medical and Health Coordination Center and on March 2, 2020, the Office of Emergency Services activated the State Operations Center to support and guide state and local actions to preserve public health; and
WHEREAS the California Department of Public Health has been in regular communication with hospitals, clinics and other health providers and has provided guidance to health facilities and providers regarding COVID-19; and
WHEREAS as of March 4, 2020, across the globe, there are more than 94,000 confirmed cases of COVID-19, tragically resulting in more than 3,000 deaths worldwide; and
WHEREAS as of March 4, 2020, there are 129 confirmed cases of COVID-19 in the United States, including 53 in California, and more than 9,400 Californians across 49 counties are in home monitoring based on possible travel-based exposure to the virus, and officials expect the number of cases in California, the United States, and worldwide to increase; and
WHEREAS for more than a decade California has had a robust pandemic influenza plan, supported local governments in the development of local plans, and required that state and local plans be regularly updated and exercised; and
WHEREAS California has a strong federal, state and local public health and health care delivery system that has effectively responded to prior events including the H 1 N 1 influenza virus in 2009, and most recently Ebola; and
Case 2:20-cv-04213 Document 1-1 Filed 05/08/20 Page 2 of 5 Page ID #:27
WHEREAS experts anticipate that while a high percentage of individuals affected by COVID-19 will experience mild flu-like symptoms, some will have more serious symptoms and require hospitalization, particularly individuals who are elderly or already have underlying chronic health conditions; and
WHEREAS it is imperative to prepare for and respond to suspected or confirmed COVID-19 cases in California, to implement measures to mitigate the spread of COVID-19, and to prepare to respond to an increasing number of individuals requiring medical care and hospitalization; and
WHEREAS if COVID-19 spreads in California at a rate comparable to the rate of spread in other countries, the number of persons requiring medical care may exceed locally available resources, and controlling outbreaks minimizes the risk to the public, maintains the health and safety of the people of California, and limits the spread of infection in our communities and within the healthcare delivery system; and
WHEREAS personal protective equipment (PPE) is not necessary for use by the general population but appropriate PPE is one of the most effective ways to preserve and protect California's healthcare workforce at this critical time and to prevent the spread of COVID-19 broadly; and
WHEREAS state and local health departments must use all available preventative measures to combat the spread of COVID-19, which will require access to services, personnel, equipment, facilities, and other resources, potentially including resources beyond those currently available, to prepare for and respond to any potential cases and the spread of the virus; and
WHEREAS I find that conditions of Government Code section 8558(b], relating to the declaration of a State of Emergency, have been met; and
WHEREAS I find that the conditions caused by COVID-19 are likely to require the combined forces of a mutual aid region or regions to appropriately respond; and
WHEREAS under the provisions of Government Code section 8625(c), I find that local authority is inadequate to cope with the threat posed by COVID-19; and
WHEREAS under the provisions of Government Code section 8571, I find that strict compliance with various statutes and regulations specified in this order would prevent, hinder, or delay appropriate actions to prevent and mitigate the effects of the COVID-19.
NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes, including the California Emergency Services Act, and in particular, Government Code section 8625, HEREBY PROCLAIM A STATE OF EMERGENCY to exist in California.
Case 2:20-cv-04213 Document 1-1 Filed 05/08/20 Page 3 of 5 Page ID #:28
IT IS HEREBY ORDERED THAT:
l . In preparing for and responding to COVID-19, all agencies of the state government use and employ state personnel, equipment, and facilities or perform any and all activities consistent with the direction of the Office of Emergency Services and the State Emergency Plan, as well as the California Department of Public Health and the Emergency Medical Services Authority. Also, a ll residents are to heed the advice of emergency officials with regard to this emergency in order to protect their safety.
2. As necessary to assist local governments and for the protection of public health, state agencies shall enter into contracts to arrange for the procurement of materials, goods, and services needed to assist in preparing for, containing, responding to, mitigating the effects of, and recovering from the spread of COVID-19. Applicable provisions of the Government Code and the Public Contract Code, including but not limited to travel, advertising, and competitive bidding requirements, are suspended to the extent necessary to address the effects of COVID-19.
3. Any out-of-state personnel, including, but not limited to, medical personnel, entering California to assist in preparing for, responding to, mitigating the effects of, and recovering from COVID-19 shall be permitted to provide services in the same manner as prescribed in Government Code section 179.5, with respect to licensing and certification. Permission for any such individual rendering service is subject to the approval of the Director of the Emergency Medical Services Authority for medical personnel and the Director of the Office of Emergency Services for non-medical personnel and shall be in effect for a period of time not to exceed the duration of this emergency.
4. The time limitation set forth in Penal Code section 396, subdivision (b), prohibiting price gouging in time of emergency is hereby waived as it relates to emergency supplies and medical supplies. These price gouging protections shall be in effect through September 4, 2020.
5. Any state-owned properties that the Office of Emergency Services determines are suitable for use to assist in preparing for, responding to, mitigating the effects of, or recovering from COVI D-19 shall be made available to the Office of Emergency Services for this purpose, notwithstanding any state or local law that would restrict, delay, or otherwise inhibit such use.
6. Any fairgrounds that the Office of Emergency Services determines are suitable to assist in preparing for, responding to, mitigating the effects of, or recovering from COVID-19 shall be made available to the Office of Emergency Services pursuant to the Emergency Services Act, Government Code section 8589. The Office of Emergency Services shall notify the fairgrounds of the intended use and can immediately use the fairgrounds without the fairground board of directors' approval, and
Case 2:20-cv-04213 Document 1-1 Filed 05/08/20 Page 4 of 5 Page ID #:29
notwithstanding any state or local law that would restrict, delay, or otherwise inhibit such use.
7. The 30-day time period in Health and Safety Code section l 01080, within which a local governing authority must renew a local health emergency, is hereby waived for the duration of this statewide emergency. Any such local health emergency will remain in effect until each local governing authority terminates its respective local health emergency.
8. The 60-day time period in Government Code section 8630, within which local government authorities must renew a local emergency, is hereby waived for the duration of this statewide emergency. Any local emergency proclaimed will remain in effect until each local governing authority terminates its respective local emergency.
9. The Office of Emergency Services shall provide assistance to local governments that have demonstrated extraordinary or disproportionate impacts from COVID-19, if appropriate and necessary, under the authority of the California Disaster Assistance Act, Government Code section 8680 et seq., and California Code of Regulations, Title 19, section 2900 et seq.
l 0. To ensure hospitals and other health facilities are able to adequately treat patients legally isolated as a result of COYID-19, the Director of the California Department of Public Health may waive any of the licensing requirements of Chapter 2 of Division 2 of the Health and Safety Code and accompanying regulations with respect to any hospital or health facility identified in Health and Safety Code section 1250. Any waiver shall include alternative measures that, under the circumstances, will allow the facilities to treat legally isolated patients while protecting public health and safety. Any facilities being granted a waiver shall be established and operated in accordance with the facility's required disaster and mass casualty plan. Any waivers granted pursuant to this paragraph shall be posted on the Department's website.
11 . To support consistent practices across California, state departments, in coordination with the Office of Emergency Services, shall provide updated and specific guidance relating to preventing and mitigating COYID-19 to schools, employers, employees, first responders and community care facilities by no later than March l 0, 2020.
12. To promptly respond for the protection of public health, state entities are, notwithstanding any other state or local law, authorized to share relevant medical information, limited to the patient's underlying health conditions, age, current condition, date of exposure, and possible contact tracing, as necessary to address the effect of the COYID-19 outbreak with state, local, federal, and nongovernmental partners, with such information to be used for the limited purposes of monitoring, investigation and control, and treatment and coordination of care. The
Case 2:20-cv-04213 Document 1-1 Filed 05/08/20 Page 5 of 5 Page ID #:30
notification requirement of Civil Code section 1798.24, subdivision (i), is suspended.
13. Notwithstanding Health and Safety Code sections 1797.52 and 1797.218, during the course of this emergency, any EMT-P licensees shall have the authority to transport patients to medical facilities other than acute care hospitals when approved by the California EMS Authority. In order to carry out this order, to the extent that the provisions of Health and Safety Code sections 1797.52 and 1797.218 may prohibit EMT-P licensees from transporting patients to facilities other than acute care hospitals, those statutes are hereby suspended until the termination of this State of Emergency.
14.The Department of Social Services may, to the extent the Department deems necessary to respond to the threat of COVID-19, waive any provisions of the Health and Safety Code or Welfare and Institutions Code, and accompanying regulations, interim licensing standards, or other written policies or procedures with respect to the use, licensing, or approval of facilities or homes within the Department's jurisdiction set forth in the California Community Care Facilities Act (Health and Safety Code section 1500 et seq.), the California Child Day Care Facilities Act (Health and Safety Code section 1596.70 et seq.), and the California Residential Care Facilities for the Elderly Act (Health and Safety Code section 1569 et seq.). Any waivers granted pursuant to this paragraph shall be posted on the Department's website.
I FURTHER DIRECT that as soon as hereafter possible, this proclamation be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this proclamation.
IN WITNESS WHEREOF I have hereunto se-r my hand and caused the Great Seal of the State of
affixed this 4th day
ATTEST:
ALEX PADILLA Secretary of State
EXHIBIT 2
Case 2:20-cv-04213 Document 1-2 Filed 05/08/20 Page 1 of 3 Page ID #:31
EXECUTIVE DEPARTMENT STATE OF CALIFORNIA
EXECUTIVE ORDER N-37-20
WHEREAS on March 4, 2020, I proclaimed a State of Emergency to exist in California as a result of the threat of COVID-19; and
WHEREAS in a short period of time, COVID-19 has rapidly spread throughout California, necessitating stringent public health emergency orders as well as guidance from federal, state, and local public health officials; and
WHEREAS on March 16, 2020, I issued Executive Order N-28-20, suspending state law limitations on local jurisdictions that impose restrictions on evictions; and
WHEREAS on March 19, 2020, I issued Executive Order N-33-20, ordering all residents to immediately heed the Order of the State Public Health Officer for all residents, unless exempted, to stay home or at their place of residence; and
WHEREAS many Californians are experiencing or will experience substantial losses of income as a result of business closures, the loss of hours or wages, or layoffs related to COVID-19, hindering their ability to keep up with their rent, and leaving them vulnerable to eviction; and
WHEREAS minimizing evictions during this period is critical to reducing the spread of COVID-19 in vulnerable populations by allowing all residents to stay home or at their place of residence in compliance with Executive Order N-33-20; and
WHEREAS Chief Justice Tani Cantil-Sakauye issued advisory guidance on March 20, 2020 for superior courts to suspend most civil trials and hearings for at least 60 days, and on March 23, 2020, suspended all jury trials for a period of 60 days, and extended by 60 days the time period for the holding of a civil trial; and
WHEREAS on March 25, 2020 the Department of Business Oversight secured support from national banks, state banks and credit unions for temporary delays in mortgage payments and foreclosure sales and evictions for homeowners who have economic impacts from COVID-19 with the objective of maximizing consistency and minimizing hurdles potentially faced by borrowers.
NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution a nd statutes of the State of California, and in particular, Government Code sections 8567 and 8571, do hereby issue the following Order to become effective immediately:
IT IS HEREBY ORDERED THAT:
l) The deadline specified in Code of Civil Procedure section 1167 shall be extended for a period of 60 days for any tenant who is served, while
Case 2:20-cv-04213 Document 1-2 Filed 05/08/20 Page 2 of 3 Page ID #:32
this Order is in effect, with a complaint that seeks to evict the tenant from a residence or dwelling unit for nonpayment of rent and who satisfies all of the following requirements:
a. Prior to the date of this Order, the tenant paid rent due to the landlord pursuant to an agreement.
b. The tenant notifies the landlord in writing before the rent is due, or within a reasonable period of time afterwards not to exceed 7 days, that the tenant needs to delay all or some payment of rent because of an inability to pay the full amount due to reasons related to COVID-19, including but not limited to the following:
(i) The tenant was unavailable to work because the tenant was sick with a suspected or confirmed case of COVID-19 or caring for a household or family member who was sick with a suspected or confirmed case of COVID-19;
(ii) The tenant experienced a lay-off, loss of hours, or other income reduction resulting from COVID-19, the state of emergency, or related government response; or
(iii) The tenant needed to miss work to care for a child whose school was closed in response to COVID-19.
c. The tenant retains verifiable documentation, such as termination notices, payroll checks, pay stubs, bank statements, medical bills, or signed letters or statements from an employer or supervisor explaining the tenant's changed financial circumstances, to support the tenant's assertion of an inability to pay. This documentation may be provided to the landlord no later than the time upon payment of back-due rent.
2) No writ may be enforced while this Order is in effect to evict a tenant from a residence or dwelling unit for nonpayment of rent who satisfies the requirements of subparagraphs (a)-(c) of paragraph l.
3) The protections in paragraphs 1 and 2 shall be in effect through May 31, 2020.
Nothing in this Order shall prevent a tenant who is able to pay all or some of the rent due from paying that rent in a timely manner or relieve a tenant of liability for unpaid rent.
Nothing in this Order shall in any way restrict state or local governmental authority to order any quarantine, isolation, or other public health measure that may compel an individual to remain physically present in a particular residentia l property.
IT IS FURTHER ORDERED that this Order supersedes Executive Order N-28-20 to the extent that there is any conflict with that Order.
This Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person.
Case 2:20-cv-04213 Document 1-2 Filed 05/08/20 Page 3 of 3 Page ID #:33
I FURTHER DIRECT that as soon as hereafter possible, this proclamation be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this Order.
IN WITNESS WHEREOF I have hereunto set my hand and caused the Great Seal of the State of California to be affixed this 27th day of March 2020.
GAVIN NEWSOM Governor of California
ATTEST:
ALEX PADILLA Secretary of State
~~···
EXHIBIT 3
EXECUTIVE ORDER N-38-20
WHEREAS on March 4, 2020, I proclaimed a State of Emergency to exist in
California as a result of the threat of COVID-19; and
WHEREAS government institutions throughout California are working to
mitigate the impacts of the COVID-19 pandemic; and
WHEREAS the Judicial Branch, under the leadership of the Judicial Council
and its Chairperson, is among those government institutions that has risen to the
challenge presented by COVID-19; and
WHEREAS the Judicial Branch retains extensive authority, statutory and
otherwise, to manage its own operations as it deems appropriate to mitigate
the impacts of COVID-19; and
WHEREAS the authority entrusted to the Judicial Branch and its officers
under existing law includes the authority of the Chairperson of the Judicial
Council to issue orders, under Government Code section 68115, authorizing
courts to take certain actions in response to an emergency, as well as the
authority of the Judicial Council, under Article VI, section 6 of the California
Constitution, to “adopt rules for court administration, practice, and procedure”
as long as those rules are not inconsistent with statute; and
WHEREAS the Chairperson of the Judicial Council has already exercised
her authority to suspend jury trials; to extend the time period for bringing an
action to trial; to authorize particular courts to deem certain days holidays under
Code of Civil Procedure sections 12 and 12a; and to take other action to
protect the health and safety of all who work in, use, and otherwise attend the
courts, while also preserving parties’ due process rights; and
WHEREAS the purpose of this Order is to enhance the authority of the
Judicial Council and its Chairperson to issue emergency orders; to amend or
adopt rules for court administration, practice, and procedure; and to take other
action to respond to the emergency caused by COVID-19;
NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California,
in accordance with the authority vested in me by the State Constitution and
statutes of the State of California, and in particular, Government Code sections
8567, 8571, and 8627, do hereby issue the following Order to become effective
immediately:
IT IS HEREBY ORDERED THAT:
1) To the extent Government Code section 68115 or any other provision
of law imposes or implies a limitation on the subject matter the
Chairperson of the Judicial Council may address via emergency order
or statewide rule issued pursuant to section 68115, that limitation is
suspended. This paragraph is intended to remove any impediment
that would otherwise prevent the Chairperson from authorizing, by
Case 2:20-cv-04213 Document 1-3 Filed 05/08/20 Page 1 of 3 Page ID #:34
emergency order or statewide rule, any court to take any action she
deems necessary to maintain the safe and orderly operation of that
court. Nothing in this paragraph is intended to in any way restrict the
Chairperson’s existing authority under section 68115, or to alter in any
way any order the Chairperson has previously issued pursuant to her
authority under section 68115.
2) To the extent Government Code section 68115 or section 68072, or any
other provision of law, imposes or implies a limitation on the authority of
the Judicial Council or its Chairperson to provide (by emergency order
issued pursuant to section 68115 or otherwise) for an emergency
statewide or local rule or order amending the California Rules of Court
or any other applicable court rule, or for any other expedited
procedure for amending the California Rules of Court or any other
applicable court rule, that limitation is suspended. This paragraph is
intended to remove any impediment that would otherwise prevent the
Judicial Council or its Chairperson from establishing (by emergency
order or otherwise) an emergency or otherwise expedited procedure
for making such amendments to the California Rules of Court or any
other applicable court rule as the Judicial Council may, in its discretion,
choose to adopt in response to the COVID-19 pandemic. This
paragraph should be construed to extend the rulemaking authority of
the Judicial Council to its constitutional maximum under Article VI,
section 6 of the California Constitution.
3) In the event that the Judicial Council or its Chairperson, in the exercise
of rulemaking authority consistent with Paragraph 2, wishes to consider
a rule that would otherwise be inconsistent with any statute
concerning civil or criminal practice or procedure, the relevant statute
is suspended, subject to the following conditions:
a) The statute is suspended only to the extent it is inconsistent with
the proposed rule;
b) The statute is suspended only if the proposed rule is adopted;
and
c) The statute is suspended only when the adopted rule becomes
effective.
The purpose of this paragraph is to afford the Judicial Council and its
Chairperson maximum flexibility to adopt any rules concerning civil or
criminal practice or procedure they may deem necessary to respond
to the COVID-19 pandemic, while ensuring that the rules adopted
“shall not be inconsistent with statute,” as provided in Article VI, section
6 of the California Constitution.
4) In addition to any statute suspended pursuant to Paragraph 3, the
following statutes are suspended:
a) Code of Civil Procedure section 2025.310, subdivision (b), to the
extent that subdivision limits a court’s authority to provide that a
party deponent may appear at a deposition by telephone.
b) Code of Civil Procedure section 1010.6, subdivisions (b) through
(d), to the extent those subdivisions limit a court’s authority to
order parties to accept electronic service, or to perform service
Case 2:20-cv-04213 Document 1-3 Filed 05/08/20 Page 2 of 3 Page ID #:35
electronically.
5) Nothing in this Order is intended to suspend or otherwise interfere with
any rule of the California Rules of Court, any local rule of any California
court, or any other rule or order of any California court, except to the
extent the Judicial Council or its Chairperson may provide consistent
with this Order or in a manner otherwise authorized by law.
IT IS FURTHER ORDERED that as soon as hereafter possible, this Order be
filed in the Office of the Secretary of State and that widespread publicity and
notice be given of this Order.
This Order is not intended to, and does not, create any rights or benefits,
substantive or procedural, enforceable at law or in equity, against the State of
California, its agencies, departments, entities, officers, employees, or any other
person.
IN WITNESS WHEREOF I have
hereunto set my hand and caused
the Great Seal of the State of
California to be affixed this 27th day
of March 2020.
_____________________________
GAVIN NEWSOM
Governor of California
ATTEST:
_____________________________
ALEX PADILLA
Secretary of State
Case 2:20-cv-04213 Document 1-3 Filed 05/08/20 Page 3 of 3 Page ID #:36
EXHIBIT 4
1
Appendix I 1 Emergency Rules Related to COVID-19 2
3 4 Emergency rule 1. Unlawful detainers 5 6 (a) Application 7 8
Notwithstanding any other law, including Code of Civil Procedure sections 1166, 9 1167, 1169, and 1170.5, this rule applies to all actions for unlawful detainer. 10
11 (b) Issuance of summons 12 13
A court may not issue a summons on a complaint for unlawful detainer unless the 14 court finds, in its discretion and on the record, that the action is necessary to protect 15 public health and safety. 16
17 (c) Entry of default 18 19
A court may not enter a default or a default judgment for restitution in an unlawful 20 detainer action for failure of defendant to appear unless the court finds both of the 21 following: 22
23 (1) The action is necessary to protect public health and safety; and 24
25 (2) The defendant has not appeared in the action within the time provided by 26
law, including by any applicable executive order. 27 28 (d) Time for trial 29 30
If a defendant has appeared in the action, the court may not set a trial date earlier 31 than 60 days after a request for trial is made unless the court finds that an earlier 32 trial date is necessary to protect public health and safety. Any trial set in an 33 unlawful detainer proceeding as of April 6, 2020 must be continued at least 60 days 34 from the initial date of trial. 35
36 (e) Sunset of rule 37 38
This rule will remain in effect until 90 days after the Governor declares that the 39 state of emergency related to the COVID-19 pandemic is lifted, or until amended or 40 repealed by the Judicial Council. 41
42 43
Case 2:20-cv-04213 Document 1-4 Filed 05/08/20 Page 1 of 1 Page ID #:37
