1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THOMAS GEARING, et al., Case No. 21-cv-01802-EMC
8 Plaintiffs, ORDER GRANTING DEFENDANT’S 9 v. MOTION TO ABSTAIN, AND STAYING CASE 10 CITY OF HALF MOON BAY, Docket No. 17 11 Defendant.
12 13 14 Plaintiffs filed a § 1983 suit against the City of Half Moon Bay and Does 1-10, inclusive, 15 alleging, inter alia, a regulatory taking of Plaintiff’s undeveloped land in violation of the Fifth and 16 Fourteenth Amendments. Complaint (Docket No. 1). Plaintiffs allege that the City 17 unconstitutionally designated their land as a public park and stymied development through land 18 use regulations. About one week after Plaintiffs filed suit in federal court, the City filed an 19 eminent domain action involving the same parties and property in state court, City of Half Moon 20 Bay v. Gearing, San Mateo County Superior Court, Case No. 21-CIV-01560 (filed March 23, 21 2021). Before the Court is the City’s Motion to Abstain from adjudicating the federal action under 22 the Pullman abstention doctrine. Docket No. 17. Also before the Court are Plaintiffs’ Objection 23 to Reply Evidence (Docket No. 28), Plaintiffs’ two Requests for Judicial Notice (Docket No. 28-1; 24 Docket No. 37), and the City’s Request for Judicial Notice (Docket No. 41). 25 BACKGROUND 26 A. Factual Background 27 In the complaint, Plaintiffs allege as follows. 1 the West of Railroad area of the city of Half Moon Bay. Compl. ¶¶ 1-2. This case challenges the 2 constitutionality of the conditions for approval that govern development within the West of 3 Railroad area. Id. ¶ 9. For approximately 40 years, West of Railroad has been designated a public 4 recreation park by the City, and the entire 32 acres (which includes Plaintiffs’ properties) have 5 been walked over regularly as a means of public access to a coastal trail along the beach. Id. ¶ 15. 6 By designating West of Railroad as a regional park and unconstitutionally treating it as a park, the 7 City’s unconstitutional regulations, treatment, activities, physical invasions, and actions have 8 constituted a taking of Plaintiffs’ properties without just compensation. Id. ¶ 16. 9 In 1993, the City certified its Land Use Plan (“LUP”), Section 9.3.5 of which provides: 10 “[n]o development shall be permitted until an opportunity for acquisition and addition to the state 11 beach has been allowed and the State Department of Parks and Recreation has indicated no intent 12 to acquire. Such determination by the State Department of Parks and Recreation shall be made 13 within one year after certification of the Land Use Plan.” Id. ¶ 18. Section 9.3.5 of the LUP also 14 contemplates that “limited residential development” could be permitted in West of Railroad if 15 State acquisition is not possible, provided there is a “complete replanning and re-platting of the 16 area.” Id. ¶ 20. However, the City excluded Plaintiff’s parcels from among those sites which it 17 considered for development. Id. ¶ 28. 18 Plaintiff Thomas Gearing has paid his property taxes for his parcels with reasonable 19 investment-backed expectation that he would one day be allowed to build single-family residential 20 homes. Id. ¶ 25. However, the City has unconstitutionally lowered the value of the individual lots 21 in West of Railroad through, inter alia, misrepresenting the existence of wetlands and sensitive 22 habitats on Plaintiffs’ parcels, physically invading the property, and clouding fee title by 23 announcing its intent to condemn the property without initiating eminent domain proceedings. Id. 24 ¶ 29. 25 In 2019, the state legislature enacted Senate Bill 330 (“S.B. 330”), The Housing 26 Accountability Act, which applies to applications to build dwelling units on existing residential 27 lots. Id. ¶ 32. S.B. 330 is a 2019 statute that was adopted by the California legislature to 1 projects. 2019 Cal. Stat. ch. 654; see Compl. ¶ 32. Notably, S.B. 330 prohibits a local agency 2 from disapproving or conditioning approval in a manner that renders infeasible, a housing 3 development project for very low, low, or moderate income households unless the local agency 4 makes specified written findings based on a preponderance of the evidence in the record. 2019 5 Cal. Stat. ch. 654. On October 1, 2020, Plaintiffs submitted an application, pursuant to S.B. 330, 6 to build dwelling units on their lots. Compl. ¶ 33. On October 13, 2020, the City informed 7 Plaintiffs that it would not consider their application because it did not comply with LUP Section 8 9.3.5, which requires adoption of a specific land use plan. Id. ¶ 34. Plaintiffs were told by the 9 City Council that this decision was not appealable. Id. ¶ 35. 10 Based on the foregoing, Plaintiffs allege: (1) violations of 42 U.S.C. Section 1983 and the 11 Fourteenth Amendment’s Due Process Clause for the City’s decision to impose conditions on the 12 development of the subject lots and its refusal to prepare a specific plan for development of the 13 West of Railroad lots; (2) a regulatory taking in violation of 42 U.S.C. Section 1983 and the Fifth 14 and Fourteenth Amendments for the City’s deprivation of any economically viable use for the 15 subject lots and for Plaintiffs’ investment-backed expectations; (3) a physical taking in violation of 16 42 U.S.C. Section 1983 and the Fifth and Fourteenth Amendments for the City’s designation of 17 the subject lots as a public recreation park and its physical intrusion onto the subject lots on 18 numerous occasions; and (4) a violation of the Equal Protection Clause under the Fourteenth 19 Amendment and 42 U.S.C. Section 1983 for the City’s selective imposition of restrictions and 20 requirements on the subject lots. Id. ¶¶ 40-50. 21 B. Procedural Background 22 In 2020, the City Council approved an update to the Land Use Plan (“LUP”), which allows 23 residential development in the West of Railroad area but prioritizes public acquisition with the 24 intent of preserving the surrounding blufftop area for its significant habitat, coastal access and 25 recreation, and scenic value. Defendant’s Mot. to Abstain (“Mot.”) at 4-5. The City wishes to 26 address the runoff and erosion concerns along this blufftop area and ensure continued public 27 access for recreational opportunities. Id. at 5. 1 Id. Prior to exercising the power of eminent domain, a local jurisdiction must appraise the 2 property it seeks to acquire, then make an offer to purchase the property based on that appraisal. 3 Id. (citing Cal. Gov’t Code § 7267.2). If unable to reach agreement on a purchase price with the 4 property owner, the jurisdiction may adopt a Resolution of Necessity (“RON”) which authorizes 5 the filling of an eminent domain action in state court. Id. (citing Cal. Civ. Proc. Code § 1245.220). 6 On December 22, 2020, the City delivered to Plaintiffs a Notice of Decision to Appraise, a 7 precursor to eminent domain; prior to adopting a RON, a “public entity,” pursuant to Cal. Gov’t 8 Code § 7267.2(a)(1), “shall establish an amount that it believes to be just compensation therefor, 9 and shall make an offer to the owner or owners of record to acquire the property for the full 10 amount so established, unless the owner cannot be located with reasonable diligence.” On January 11 21, 2021, the City made a formal offer to purchase Plaintiffs’ property for the fair market value as 12 determined by the City’s appraisal. Id. Plaintiffs did not accept the offer, and the City 13 subsequently adopted an RON at a March 16 hearing, which authorized the City Attorney to 14 acquire the property by condemnation. Id. On March 23, the City filed an eminent domain action 15 in state court, and on June 22, the City filed a Motion for Immediate Possession, requesting 16 possession of the property by October 1, or as soon thereafter as possible. Id. at 5-6. The City 17 states that the state court has yet to rule on this motion. 18 Plaintiffs filed this suit on March 15, 2021, the day before the City Council hearing on the 19 RON (and eight days before the eminent domain action was filed by the City in state court). 20 Docket No. 1. In the state eminent domain proceedings, Plaintiffs moved to stay proceedings 21 pending resolution of the instant case. Mot. at 6. On September 2, 2021, the superior court denied 22 Plaintiffs’ motion without prejudice.1 See Def. Request for Judicial Notice at 1, Docket No. 41. 23 1 On September 8, 2021, the City filed a judicial notice of the state superior court’s minute order 24 denying Plaintiff’s motion to stay the eminent domain proceedings in this Court. Def. Request for Judicial Notice, Ex. A, Docket No. 41. The Court can properly take judicial notice of this 25 document because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned and their authenticity is not disputed. See Fed. R. Evid. 201; 26 Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (“It is appropriate to take judicial notice of this information, as it was made publicly available by government entities . . . , 27 and neither party disputes the authenticity . . . or the accuracy of the information displayed 1 LEGAL STANDARDS 2 A. Pullman Abstention 3 Pullman abstention is “an equitable doctrine that allows federal courts to refrain from 4 deciding sensitive federal constitutional questions when state law issues may moot or narrow the 5 constitutional questions.” San Remo Hotel v. City & Cty. of S.F., 145 F.3d 1095, 1104 (9th Cir. 6 1998). Pullman abstention is appropriate where:
7 “(1) The complaint touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to 8 its adjudication is open.
9 (2) Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy. 10 (3) The possibly determinative issue of state law is doubtful.” 11 12 Sinclair Oil Corp. v. Cty. of Santa Barbara, 96 F.3d 401, 409 (9th Cir. 1996). Cf. Courthouse 13 News Serv. v. Planet, 750 F.3d 776, 783-84 (9th Cir. 2014) (same elements). The doctrine does 14 not exist for the benefit of either party, but rather “for ‘the rightful independence of the state 15 governments and for the smooth working of the federal judiciary.’” San Remo Hotel, 145 F.3d at 16 1105 (quoting R.R. Com. of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941)). 17 B. Fifth Amendment Takings Jurisprudence 18 The Takings Clause of the Fifth Amendment provides that “private property [shall not] be 19 taken for public use, without just compensation.” U.S. Const. amend. V. Previously, a landowner 20 could not bring a Takings Claim under the Fifth Amendment until they exhausted the 21 administrative procedures available at the state level. See Williamson Cty. Reg’l Planning 22 Comm’n v. Hamilton Bank, 473 U.S. 172, 186 (1985) (“a claim that the application of government 23 regulations effects a taking of a property interest is not ripe until the government entity charged 24 with implementing the regulations has reached a final decision regarding the application of the 25 regulations to the property at issue”). This came to be known as the “state-litigation requirement.” 26
27 Antitrust Litig., 856 F.Supp.2d 1103, 1108 (N.D.Cal.2012) (“A court may also take judicial notice 1 In Knick, the Supreme Court overruled the state-litigation requirement and held that “[a] property 2 owner has an actionable Fifth Amendment takings claim when the government takes [] property 3 without paying for it.” Knick v. Twp. of Scott, 139 S. Ct. 2162, 2167 (2019). Thus, a property 4 owner “has suffered a violation of his Fifth Amendment rights when the government takes his 5 property without just compensation, and therefore may bring his claim in federal court under § 6 1983 at that time.” Id. at 2168. The property owner need not exhaust state court proceedings 7 before suing in federal court. 8 However, the government’s decision challenged by the property owner must be final, a 9 requirement not disturbed by Knick. The Supreme Court has clarified the standard for showing 10 the final agency action necessary to ripen an as-applied claim under the Takings Clause. See 11 Pakdel v. City & Cty. of S.F., 141 S. Ct. 2226 (2021) (“[t]he finality requirement is relatively 12 modest. All a plaintiff must show is that ‘there [is] no question . . . about how the ‘regulations at 13 issue apply to the particular land in question’”) (quoting Suitum v. Tahoe Reg’l Planning Agency, 14 520 U.S. 725, 739 (1997)). 15 DISCUSSION 16 A. The Effect of Knick on Pullman 17 Defendant asks this Court to abstain in favor of the state court eminent domain suit under 18 Pullman. Plaintiffs argue Pullman abstention in cases such as this is no longer appropriate after 19 Knick and Pakdel. Opp’n at 11-16. The Court thus examines this threshold question. 20 In overruling the state-litigation requirement in Williamson Cty. Reg’l Planning Comm’n, 21 473 U.S. 172, the Supreme Court in Knick explained that due to that exhaustion requirement a 22 takings plaintiff faced a Catch-22: “[h]e cannot go to federal court without going to state court 23 first; but if he goes to state court and loses, his claim will be barred in federal court” by the 24 preclusive effect of the state court judgment under San Remo. Knick, 139 S. Ct. at 2167. 25 Plaintiffs contend that invocation of Pullman abstention would implicate the same “San Remo 26 trap”; permitting the state court action to proceed would lead to collateral estoppel, depriving the 27 property owner of their rights to litigate to bring their takings claims in federal court. Plaintiffs 1 constitutional claim will have to be resolved by the state court.” Opp’n at 16-17. In short, the 2 dilemma created by the San Remo trap mitigates against the state litigation requirement in 3 Williams. 4 Plaintiffs’ assertion is without merit. First, nothing in Knick or Pakdel purports to overrule 5 or even mentions Pullman or any other abstention doctrine. Knick and Pullman operate in 6 different spheres. Knick concerns the ripeness of a takings claim. See Knick, 139 S. Ct. at 2172 7 (holding, with respect to ripeness, that “a taking without compensation violates the self-executing 8 Fifth Amendment at the time of the taking, [and] the property owner can bring a federal suit at 9 that time”) (emphasis added). The Pullman doctrine, on the other hand, does not concern the 10 ripeness and timing of when a federal suit may be filed, nor does it impact Knick’s defining when 11 a takings claim accrues. Instead, it addresses the circumstances when an otherwise ripe and 12 properly filed suit may temporarily be held in abeyance in favor of a related state suit where 13 warranted by the principles of comity and federalism. See Pearl Inv. Co. v. San Francisco, 774 14 F.2d 1460, 1462 (9th Cir. 1985) (holding that abstention is appropriate “where principles of 15 comity and federalism justify postponing the exercise of jurisdiction that Congress conferred upon 16 federal courts”) (emphasis added). As the district court recently noted, “Knick did not abrogate 17 the abstention doctrines or affect the applicable Pullman abstention factors” because the fact 18 “[t]hat a case is properly before a federal court does not deprive the court from abstaining in 19 appropriate circumstances.” Thinh Tran v. Dep’t of Planning, No. 19-00654 JAO-RT, 2020 U.S. 20 Dist. LEXIS 103461, at *18 (D. Haw. June 12, 2020).2 21 Second, Pullman does not impose a universal prerequisite to suit like the state litigation 22 2 Plaintiffs cite EHOF Lakeside II, LLC v. Riverside Cty. Transp. Comm'n, 826 F. App'x 669 (9th 23 Cir. 2020) to suggest that there is an “altered landscape in this area of the law” following Knick. Opp. at 3. EHOF Lakeside II is an unpublished Ninth Circuit opinion wherein the plaintiff first 24 brought an inverse condemnation claim in state court and subsequently brought a Fifth Amendment Takings Claim under § 1983 in federal court. EHOF Lakeside II, 826 F. App’x at 25 669. The Ninth Circuit found that all three Pullman abstention requirements had been met, and that because the state court action had been filed before Knick, it need not “decide the precise 26 scope of Pullman in the post-Knick world.” Id. at 670. For the reasons discussed herein, there is no reason why Knick cannot be harmonized with the Pullman abstention doctrine, especially as 27 discussed infra, where Plaintiffs may make an England reservation in the state court eminent 1 exhaustion requirement in Williamson County. Pullman abstention is implicated only when there 2 happens to be coordinate suits in both state and federal courts and where the federal court finds the 3 Pullman requirements are met and chooses to exercise its discretion to abstain. It does not have 4 the sweeping and unavoidable effect of Williamson County’s state-exhaustion requirement. See 5 Knick, 139 S. Ct. at 2167 (citing San Remo Hotel, 145 F.3d 1095) (“a state court’s resolution of a 6 claim for just compensation under state law generally has preclusive effect in any subsequent 7 federal suit.”) (emphasis added). 8 Third, the threat of being deprived of an opportunity to litigate the due process, equal 9 protection, and regulatory takings claims in federal court as a result of collateral estoppel is 10 substantially mitigated by the fact that the landowner “may readily forestall any conclusion that 11 [they have] elected not to return to the District Court” to adjudicate their federal claims by 12 informing the state court of their intention “to return to the District Court for disposition of [their] 13 federal contentions.” England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411, 421 (1964)). This 14 is known as an England reservation. See Los Altos El Granada Inv’rs v. City of Capitola, 583 15 F.3d 674, 687 (9th Cir. 2009) (holding that a party “may accomplish a reservation of federal 16 claims by making on the state record the reservation to the disposition of the entire case by the 17 state courts”) (internal citation omitted). The England reservation provides “a backstop for cases 18 . . . [where] a state court might mistakenly attempt to eliminate th[e] right” to try federal claims in 19 federal court. Id. at 688. Cf. Colony Cove Props., LLC v. City of Carson, 220 Cal. App. 4th 840, 20 879 (2013) (“[t]he presence of the England reservation clarifies in a manner helpful to both the 21 court and the opposing party that a litigant wishes to limit the state court action to state issues”). 22 In this case, the eminent domain action need not resolve the federal constitutional questions as to 23 whether Plaintiffs’ rights to due process and equal protection were violated and whether there was 24 a regulatory taking prior to the use of eminent domain. The regulatory takings claim is likely to 25 turn on such factors as the nature and magnitude of any investment backed expectations and the 26 extent and effect of land use regulations on permissible uses. See Lingle v. Chevron U.S.A. Inc. 27 544 U.S. 528, 538-539 (primary factors for evaluating regulatory takings claims are the economic 1 interfered with the distinct-investment-backed expectations”) (quoting Penn Central Transp. Co. 2 v. New York City, 438 U.S. 104, 124). The eminent domain action, on the other hand, is not 3 dependent on whether there had been a regulatory taking. Hence, an England reservation provides 4 an adequate safeguard against the “San Remo trap.” See Allen v. McCurry, 449 U.S. 90, 103-04, 5 101 S. Ct. 411, 419-20 (1980) (holding that there “no reason to believe that Congress intended to 6 provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already 7 decided in state court simply because the issue arose in a state proceeding in which he would 8 rather not have been engaged at all.”). 9 Fourth, the Supreme Court decision in Knick was intended to restore takings rights under 10 the Fifth Amendment to the same constitutional status of other constitutional rights. See Knick, 11 139 S. Ct. at 2169-2170 (“Fidelity to the Takings Clause and our cases construing it requires 12 overruling Williamson County and restoring takings claims to the full-fledged constitutional status 13 the Framers envisioned when they included the Clause among the other protections in the Bill of 14 Rights.”). The Court noted that the Williamson County exhaustion requirement imposed a burden 15 not applicable to other federal constitutional rights. In contrast, to categorically exempt takings 16 claims from Pullman abstention, while subjecting all other constitutional rights to it, rather than 17 restoring takings rights under the Fifth Amendment to the same constitutional status of other 18 constitutional rights, Knick, 139 S. Ct. at 2170, would exalt takings claims over all others. 19 Pullman abstention presumes there is a federal constitutional right at issue, yet the doctrine 20 recognizes that the interests of comity and federalism sometimes warrant abstention in favor of 21 state court action. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 723 (1996) (“Federal 22 courts abstain out of deference to the paramount interests of another sovereign, and the concern is 23 with principles of comity and federalism.”). Thus, Knick does not categorically preclude district 24 courts from applying the Pullman doctrine where the prerequisites are met, even where such rights 25 as equal protection or due process are involved. See e.g. Richardson v. Koshiba, 693 F,2d 911, 26 912 (9th Cir. 1982) (abstention was proper where the plaintiff alleged that his constitutional right 27 to due process was violated but “the need to decide [] federal issues could be obviated by 1 have Hawaii’s courts decide [] sensitive questions of state law controlling judicial appointments”]; 2 See Pearl Inv. Co., 774 F.2d at 1462-65 (affirming the district court’s stay of federal proceedings 3 and abstention under Pullman where the plaintiff alleged substantive and procedural due process 4 claims, an equal protections claim, and an inverse condemnation claim). As the Supreme Court 5 acknowledged in Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 29 (1959), it 6 has “required district courts . . . to stay their proceedings pending submission of the state law 7 question to state determination” where the “issue touched upon the relationship of City to State,” 8 or “involved the scope of a previously uninterpreted state statute . . . .” Id. at 28; see Leiter 9 Minerals, Inc. v. United States, 352 U.S. 220, 229. There is no categorical exemption for eminent 10 domain suits — the Supreme Court recognized the “considerations that prevailed in conventional 11 equity suits for avoiding . . . disruption by federal courts of state government . . . are similarly 12 appropriate in a state eminent domain proceeding brought in, or removed to, a federal court.” 13 Louisiana Power & Light Co., 360 U.S. at 28. The Supreme Court noted that due to its “special 14 nature,” eminent domain “justifies a district judge, when his familiarity with the problems of local 15 law so counsels him, to ascertain the meaning of a disputed state statute from the only tribunal 16 empowered to speak definitively—the courts of the State under whose statute eminent domain is 17 sought to be exercised . . . .”). Id. at 29. 18 B. Application of the Pullman Abstention Doctrine 19 The City argues that all three requirements for application of the Pullman abstention 20 doctrine are met: (1) the case touches on a sensitive area of social policy at the state level; (2) the 21 Constitutional claims can be narrowed or avoided by a definitive ruling by the state court on the 22 state claims; and (3) the possibly determinative issue of state law is uncertain. Mot. at 11-17. 23 1. Sensitive Issues of State Social Policy 24 The first Pullman requirement asks whether “[t]he complaint touches a sensitive area of 25 social policy upon which the federal courts ought not to enter unless no alternative to its 26 adjudication is open.” Sinclair Oil Corp., 96 F.3d at 409. The Ninth Circuit has consistently 27 “held that ‘land use planning is a sensitive area of social policy that meets the first requirement for 1 In the instant case, Plaintiffs allege in the complaint that: the City unlawfully deprived 2 them from developing the subject lots for any economically beneficial use when they were zoned 3 for R1 single-family residential use at the time Plaintiffs acquired them (see Compl. ¶ 10); the 4 City’s application of Section 9.3.5 of its Land Use Plan to Plaintiffs’ lots constitutes a regulatory 5 taking and an unconstitutional restriction on development (see Compl. ¶¶ 18-24, 29-30); and the 6 City’s denial of Plaintiffs’ application for development of the subject lots under S.B. 330 was 7 unlawful (see Compl. ¶¶ 31-35). As such, Plaintiffs’ claims touch on various land use policies, 8 namely Section 9.3.5 of the City’s Land Use Plan and S.B. 330. Moreover, these land use issues 9 appear to fit within the area of sensitive social policies recognized by the Ninth Circuit under the 10 first Pullman requirement. See Rancho Palos Verdes Corp. v. Laguna Beach, 547 F.2d 1092, 11 1094-95 (9th Cir. 1976) (holding, in a case wherein the “complaint involve[d] land use planning,” 12 that the first Pullman requirement had been met because “California is attempting to grapple with 13 difficult land use problems through new policies and new mechanisms of regulation” and 14 “[f]ederal courts must be wary of intervention that will stifle innovative state efforts to find 15 solutions to complex social problems”). 16 Plaintiffs argue that “strict deference to local sensitivity [on land use issues] seems 17 unwarranted today.” Opp’n at 12. Because the regulation at issue, Land Use Plan Section 9.3.5, 18 was enacted 35 years ago, Plaintiffs argue that the Court does not need to pay deference to the 19 City’s efforts to “innovate and solve complex social problems” which are no longer novel. Id. 20 Plaintiffs note that the Ninth Circuit’s application of the Pullman doctrine in Rancho Palos Verdes 21 was premised on the notion that federal courts should not intrude upon novel state laws which 22 seek to grapple with complex social problems. Id. See Rancho Palos Verdes Corp., 547 F.2d at 23 1094-95 (finding that the first Pullman requirement was satisfied given the “web of [recent] 24 statutes” which sought to provide innovative solutions to complex land use problems). As such, 25 Plaintiffs argue that reasoning in Rancho Palos Verdes does not apply to the instant case because 26 the state and local policies at issue are no longer novel. Opp’n at 12. 27 Notably, Plaintiffs’ complaint implicates S.B. 330, the Housing Crisis Act of 2019, which 1 development and expedite permit processing. Senate Bill 330 (Housing Crisis Act of 2019), City 2 of Newport Beach, https://www.newportbeachca.gov/government/departments/community- 3 development/planning-division/housing/senate-bill-330-housing-crisis-act-of-2019 (last visited 4 7/29/21). See Compl. ¶ 32 (“Senate Bill 330 applies to applications to build dwelling units on 5 existing residential lots”). Plaintiffs allege that they are “intended beneficiar[ies]” of S.B. 330, 6 and that they will be forced to leave the state and be separated from their families if they are not 7 allowed to build on their own land due to the lack of affordable housing in California. Id. ¶ 31. 8 Thus, like the web of recently enacted statutes in Rancho Palos Verdes, S.B. 330 is a recently 9 enacted statute that addresses complex land use problems (i.e., low to medium residential housing 10 development). As such, the rationale behind the first Pullman abstention requirement (deference 11 to the efforts of localities to address complex land use problems through novel policies) applies 12 here. 13 Because this case concerns a dispute over the City’s land use planning policies and 14 implicates S.B. 330, the first requirement for Pullman abstention is met. 15 2. Avoidance or Narrowing of Constitutional Claims 16 The second Pullman factor asks whether “the constitutional question could be mooted or 17 narrowed by a definitive ruling on the state law issues.” San Remo Hotel, 145 F.3d at 1104. Cf. 18 Bank of Am. Nat’l Tr. & Sav. Asso. v. Summerland Cty. Water Dist., 767 F.2d 544, 547 (9th Cir. 19 1985) (“the important [abstention] factor is not whether the constitutional issues are uncertain, but 20 whether their resolution depends on state law and the extent to which they can be eliminated or 21 simplified by state court proceedings”). 22 The City argues that this factor is satisfied because the judgment in the state eminent 23 domain action will largely moot the takings claims asserted in the instant case by transferring title 24 to the City and providing just compensation to Plaintiffs for that transfer. Mot. at 14. Moreover, 25 the City notes that the eminent domain proceeding will provide compensation for the permanent 26 physical taking. Id. (citing Cal. Civ. Proc. Code § 1263.310) (“[c]ompensation shall be awarded 27 for the property taken. The measure of this compensation is the fair market value of the property 1 court proceedings will not likely address the alleged temporary takings claim.3 In eminent domain 2 proceedings, landowners receive the fair market value of their home, as measured on the date on 3 which the deposit is made. See Cal. Civ. Proc. Code § 1263.110(a) (in an eminent domain 4 proceeding, “the date of valuation [of the property] is the date on which the deposit is made”). 5 Plaintiffs allege that the City’s denial of their October 13, 2020, application for development 6 under S.B. 330 was a regulatory taking. See Compl. ¶¶ 33-35. The City did not make the deposit 7 on the probable compensation for Plaintiffs’ property until March 30, 2021 (five months later). 8 See Reply at 4 n.2; Gonzalez Decl. ¶ 9 (Docket No. 17-1). 9 This narrowing of the federal constitutional claim satisfies the second Pullman factor. See. 10 C-Y Dev. Co. v. Redlands, 703 F.2d 375, 379-80 (9th Cir. 1983) (finding the second Pullman 11 factor satisfied and abstention appropriate when the state court proceedings might resolve the 12 permanent regulatory taking by the state, even though Plaintiff may subsequently return to federal 13 court seeking damages for an alleged temporary deprivation of its property rights); Sakatani v. 14 City & Cty. of Honolulu, No. 18-00331 JAO-RLP, 2019 U.S. Dist. LEXIS 32190, at *8-9 (D. 15 Haw. Feb. 28, 2019) (finding second Pullman factor satisfied because adjudication of the state law 16 claims may “transform Plaintiffs’ federal takings claim from a permanent taking to a mere 17 temporary taking”). 18 3. Unresolved Questions of State Law 19 The third Pullman abstention factor asks whether “resolution of the possible determinative 20 issue of state law is uncertain.” Courthouse News, 750 F.3d at 783-84. 21 Here, the City contends that the third factor is met because the City’s land use plan, zoning 22 ordinance, and S.B. 330 have not been construed by California courts and are also at issue in the 23 state eminent domain proceeding. Mot. at 17. The City points to a letter in which Plaintiffs 24 acknowledge that S.B. 330 enacts “sweeping changes” to the construction of dwelling units that 25 3 Where there is a regulatory taking that deprives landowners of all beneficial uses of the property, 26 landowners can bring an action for inverse condemnation and seek damages for that temporary taking. See First English Evangelical Lutheran Church v. Cty. of L.A., 482 U.S. 304, 321, 107 S. 27 Ct. 2378, 2389 (1987) (“where the government’s activities have already worked a taking of all use 1 are “extraordinarily complex.” Id. See Gonzalez Decl., Ex. E at 2 (Docket No. 17-1). In 2 response, Plaintiffs claim that there are no relevant issues of state land use regulation yet to be 3 considered by the state courts which would require this Court to resolve an uncertain 4 determinative issue of state law. Opp’n at 9. Notably, the City states that “the parties dispute 5 whether S.B. 330 preempts the City’s land use controls” as Plaintiffs claim that S.B. 330 gives 6 them “the right to immediately move forward with building dwelling units” and serves as an 7 exception to local land use regulations. Mot. at 16. Additionally, in its opposition to Plaintiffs’ 8 motion to stay proceedings in the state eminent domain proceeding, the City notes that “resolution 9 of the correct measure and amount of just compensation, including whether S.B. 330 applies to the 10 Property, will moot or at least significantly narrow [Plaintiffs’] federal claims as the City will have 11 conceded liability of the value of [Plaintiffs’] fee interest in the Property and a jury will determine 12 the amount of just compensation.” Pls. RJN, Ex.1, Opp’n to Mot. to Stay at 13, Docket No. 37-1. 13 Hence, there is likely an interplay between the applicability of S.B. 330 and the value of just 14 compensation fixed by the state court in the eminent domain proceeding. 15 An interpretation of S.B. 330 will also likely inform the regulatory takings analysis herein. 16 In particular, the instant complaint appears to challenge the way in which S.B. 330 operates, 17 particularly in relation to section 9.3.5 of the City’s LUP. Plaintiffs allege that they submitted 18 “their preliminary application for development under Senate Bill 330 to build dwelling units on 19 their lots.” Compl. ¶ 33. The City informed Plaintiffs that it “refused to consider the application 20 based upon LUP section 9.3.5 and the requirement of adoption of a specific plan, among other 21 reasons.” Id. ¶ 34. And when Plaintiffs sought to appeal this determination to the City Council, 22 they were informed by the City that it had not taken any action that would constitute an appealable 23 decision. Id. ¶ 35. Thus, Plaintiffs’ complaint implicates (1) the procedures for building dwelling 24 units set out in S.B. 330, a novel and complex state law, and (2) the interaction between S.B. 330 25 and LUP section 9.3.5, and whether the requirement that Plaintiffs adopt a specific land use plan 26 contravenes S.B. 330. 27 Because the state court proceeding may resolve novel issues regarding S.B. 330, the third 1 Pullman requirement was satisfied because possible determinative questions of state law were 2 uncertain since “recently enacted statutes might be authoritatively interpreted by the California 3 courts to serve as a basis for finding that the defendants acted beyond their statutory authority”); 4 Sederquist v. Tiburon, 590 F.2d 278, 282-83 (9th Cir. 1978) (holding that the third Pullman factor 5 had been met because the reasonableness of the conditions imposed by a locality on the issuance 6 of building permits was “by nature a question turning on the peculiar facts of each case in light of 7 the many local and state-wide land use laws and regulations applicable to the area in question”); 8 San Remo, 145 F.3d at 1105 (application of local zoning ordinances to the issuance of a 9 conditional use permit raised “uncertain issues of state law”). 10 In sum, this case meets each of the three Pullman abstention requirements. 11 C. Prejudice to Plaintiffs 12 Plaintiffs argue that, even if the Pullman factors are met, abstention would be inappropriate 13 because they will face delay and increased litigation expenses, as well as a diminished opportunity 14 to recover attorneys’ fees pursuant to 42 U.S.C. § 1988. Opp’n at 16-17. Additionally, Plaintiffs 15 argue that they will have been deprived of their opportunity to have their Fifth Amendment 16 takings claim resolved by this Court since the claim will necessarily be resolved by the state 17 court’s determination of just compensation in the eminent domain proceeding. Id. at 17. 18 Plaintiffs seem to be arguing that they have a right to have a federal court determine what 19 constitutes “just compensation” for a taking of their property, and that a state court determination 20 of the issue of just compensation would deprive them of this right. Notably, the Supreme Court 21 has held that the Constitution does not guarantee that Plaintiffs must litigate their federal claims in 22 federal court. See Allen, 449 U.S. at 103-04, 101 S. Ct. at 419-20 (“nothing in the language or 23 legislative history of § 1983 proves any congressional intent to deny binding effect to a state-court 24 judgment or decision when the state court, acting within its proper jurisdiction, has given the 25 parties a full and fair opportunity to litigate federal claims, and thereby has shown itself willing 26 and able to protect federal rights”). Further, state law permits Plaintiffs to challenge the taking of 27 their property on federal constitutional grounds. See M&A Gabaee v. Cmty. Redevelopment 1 challenge a government taking in state eminent domain proceedings “based not only on California 2 state standards, but also on ‘any other ground provided by law’”) (citing Cal. Civ. P. Code § 3 1250.360(h)). Should the Plaintiffs not seek an adjudication of their takings claim in the eminent 4 domain suit, they may reserve their regulatory takings claim in this court. As noted above, 5 particularly with the England reservation, their substantive regulatory takings claims will not 6 likely be fully adjudicated in the eminent domain proceeding since the government need not 7 establish a prior regulatory taking in order to advance eminent domain. And although the value of 8 the property found in the eminent domain case may affect the calculus of damages in the federal 9 takings suit, it would do so primarily in regard to the permanent takings claim. Its impact, if any, 10 on damages for any temporary takings is less clear. 11 Moreover, Plaintiffs seek (in addition to their takings claims) damages for a violation of 12 the Due Process clause of the Fourteenth Amendment (the first cause of action), and damages for a 13 violation of the Equal Protection Clause of the Fourteenth Amendment (the fourth cause of 14 action). Compl., Prayer for Relief ¶¶ 2-3. Because the due process and equal protection claims 15 are not included in the state court complaint, it appears that the state court will not adjudicate 16 Plaintiffs’ due process and equal protection claims. Again, Plaintiffs may file an England 17 reservation in order to preserve their federal claims. Plaintiffs also may return to federal court and 18 seek attorneys’ fees under § 1988 should they prevail on their constitutional claims herein. 19 Finally, Plaintiffs argue that, if the Court abstains and eminent domain proceedings 20 continued, they would face prejudice in the form of “undue interference from the City.” Opp’n at 21 17. Namely, Plaintiffs note that the City seeks prejudgment possession in an effort to deprive 22 Plaintiffs of their right to conduct soil sample studies (to disprove the City’s theory that the 23 property consists of sensitive wetlands), of their right to enter the land and have it independently 24 appraised, and of their right to have a contractor estimate the cost to install necessary 25 infrastructure to support development of the lands. Id. However, Plaintiffs are not seeking 26 prospective injunctive relief in their federal complaint, and it is unclear what relief this Court 27 could offer that would prevent the City from interfering with the land. Plaintiffs only seek 1 Accordingly, the Court finds that Pullman abstention is warranted. Permitting a California 2 court to determine the local issues may potentially narrow the issues presented in the federal 3 constitutional litigation in this Court, and the principles of comity and federalism underlying 4 Pullman support the court’s decision to abstain under the circumstances of this case. See C-Y Dev. 5 Co., 703 F.2d at 380 (“We are satisfied that the potential for . . . a narrowing of the constitutional 6 issues and the principles of comity that will be furthered by allowing the state courts to first pass 7 on the validity of this municipal ordinance under state law are sufficient ‘countervailing interests' 8 to justify abstention in this case,” quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. at 9 188–89 (1959)). 10 OBJECTION TO REPLY EVIDENCE 11 On July 29, 2021, Plaintiffs filed an Objection to Reply Evidence, arguing that the City 12 improperly submitted new argument and evidence “as to matters which should have been foreseen 13 and addressed in connection with [the] original filing . . . .” See Pls. Objection at 1:24-25, Docket 14 No. 28. The Court does not rely on this evidence in its ruling herein. Accordingly, the Court 15 denies Plaintiff’s request for leave to file a sur-reply brief. 16 PLAINTIFFS’ REQUESTS FOR JUDICIAL NOTICE 17 On July 29, 2021, Plaintiffs submitted a request for judicial notice of the following 18 documents: (1) City of Half Moon Bay 1996 Local Coastal Land Use Plan; (2) City of Half Moon 19 Bay 2020 Local Coastal Land Use Plan; (3) Complaint in Eminent Domain filed in San Mateo 20 Superior Court Case No. 21-CIV-01560 on March 23, 2021; (4) Notice of Motion and Motion to 21 Stay the Action filed in San Mateo Superior Court Case No. 21-CIV-01560 on June 14, 2021; (5) 22 Defendant’s Memorandum of Points and Authorities in Support of Motion to Stay the Action filed 23 in San Mateo Superior Court Case No. 21- CIV-01560 on June 14, 2021; (6) Declaration of 24 Thomas J. Gearing in Support of Defendants’ Motion to Stay the Action filed in San Mateo 25 Superior Court Case No. 21- CIV-01560 on June 14, 2021; (7) Notice of Motion and Motion for 26 Immediate Possession filed in San Mateo Superior Court Case No. 21-CIV-01560 on June 22, 27 2021; (8) Memorandum of Points and Authorities in Support of Motion for Immediate Possession 1 of Jill Ekas in Support of City of Half Moon Bay’s Motion for Immediate Possession filed in San 2 Mateo Superior Court Case No. 21-CIV-01560 on June 22, 2021. See Pls. RJN, Docket No. 28-1. 3 On August 27, 2021, Plaintiffs submitted a request for judicial notice of the following 4 filings in the state court eminent domain proceeding: (1) Opposition to Defendants’ Motion to 5 Stay; (2) Declaration of Benjamin Gonzalez in Support of Opposition to Defendants’ Motion to 6 Stay; (3) Declaration of Jill Ekas in Support of City’s Opposition to Defendants’ Motion to Stay; 7 (4) Defendants’ Reply to Opposition to Motion to Stay the Action; (5) Declaration of Thomas J. 8 Gearing in Support of Defendants’ Reply to Opposition to Motion to Stay the Action; (6) 9 Defendants’ Request for Judicial Notice in Support of Reply to Opposition to Motion to Stay the 10 Action; (7) Defendant’s Evidentiary Objections to Declaration of Jill Ekas Filed in Support of 11 City’s Opposition to Motion to Stay. See Pls. RJN, Docket No. 37. 12 The Court can properly take judicial notice of these documents because they can be 13 accurately and readily determined from sources whose accuracy cannot reasonably be questioned 14 and their authenticity is not disputed. See Fed. R. Evid. 201; Daniels-Hall, 629 F.3d at 998–99. 15 Accordingly, the Court grants Plaintiffs’ requests for judicial notice. However, it does not assume 16 the truth of matters stated in those documents. In re High–Tech Employee Antitrust Litig., 856 17 F.Supp.2d at 1108. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 CONCLUSION 2 For the forgoing reasons, the Court grants the City’s Motion to Abstain and will retain 3 jurisdiction of the federal constitutional issues pending proceedings in the state court. On the 4 Court’s own motion, the proceedings in Case No. 21-cv-01802 are stayed pending state court 5 proceedings. The Court grants Plaintiffs’ requests for judicial notice and denies Plaintiffs’ request 6 to file a sur-reply brief. The Court grants the City’s request for judicial notice. 7 This order disposes of Docket Nos. 17, 28, 28-1, 37, and 41. 8 9 IT IS SO ORDERED. 10 11 Dated: September 13, 2021 12 ______________________________________ EDWARD M. CHEN 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27