Williams v. Alameda Cnty.

657 F.Supp.3d 1250

John WILLIAMS, Robert Vogel, Sheanna Rogers, Michael Loeb,Jaqueline Watson-Baker, and Housing Providers of America,a 501(c)(4) Non-profit Corporation, Plaintiffs and Petitioners, v. ALAMEDA COUNTY, Alameda County Board of Supervisors,City of Oakland, Oakland City Council, and Does 1-10, Defendants and Respondents,Alliance of Californians for Community Empowerment Action, Intervenor-Defendant.

California Apartment Association, Stephen Lin, Rakesh and Tripti Jain,& H. Alex and Dannie Alvarez, et al., Plaintiffs and Petitioners, v. County of Alameda, Board of Supervisors of the County of Alameda,and Does 10-25, Defendants and Respondents.

Case No. 3:22-cv-01274-LB

Case No. 3:22-cv-02705-LB

United States District Court, N.D. California, San Francisco Division

Signed February 24, 2023

Andrew Mayer Zacks, Zacks, Freedman & Patterson, PC, San Francisco, CA, Brian T. Hodges, Pro Hac Vice, Sam Spiegelman, Pro Hac Vice, Pacific Legal Foundation, Seattle, WA, Emily L. Brough, Zacks, Freedman & Patterson PC, Oakland, CA, Jonathan Houghton, Pro Hac Vice, Pacific Legal Foundation, Arlington, VA, for Plaintiffs and Petitioners John Williams, Robert Vogel, Sheanna Rogers, Michael Loeb, Jaqueline Watson-Baker, Housing Providers of America.

Hilary Jones Gibson, Christopher Elliott Skinnell, Nielsen Merksamer Parrinello Gross and Leoni LLP, San Rafael, CA, for Plaintiffs and Petitioners California Apartment Association, Stephen Lin, Rakesh Jain, Tripti Jain, Alison Mitchell, Michael Hagerty, H. Alex Alvarez, Dannie Alvarez.

Matthew Dwight Zinn, Edward Terry Schexnayder, Mindy K. Jian, Shute Mihaly & Weinberger LLP, San Francisco, CA, for Defendants and Respondents Alameda County Board of Supervisors, Alameda County.

Matthew Dwight Zinn, Shute, Mihaly & Weinberger, San Francisco, CA, for Defendants and Respondents County of Alameda, Board of Supervisors of the County of Alameda.

Allison Lee Ehlert, Cynthia F. Stein, Oakland City Attorney's Office, Oakland, CA, for Defendant and Respondent City of Oakland.

Cynthia F. Stein, Oakland City Attorney's Office, Oakland, CA, for Defendant and Respondent Oakland City Council.

Nicholas Nathan Spear, Susman Godfrey L.L.P., Los Angeles, CA, for Intervenor-Defendant.

Oakland City Council, Pro Se.

James T. Diamond, Jr., Rye (Ryan) P. Murphy, Goldfarb & Lipman LLP, Oakland, CA, for Amicus City of Berkeley Rent Stabilization Board.

Meghan Marie Gordon, East Bay Community Law Center, Berkeley, CA, for Amicus East Bay Community Law Center.

ORDER DENYING MOTION TO CERTIFY SUMMARY-JUDGMENT ORDER FOR INTERLOCUTORY APPEAL

Re: ECF No. 101

Re: ECF No. 48

LAUREL BEELER, United States Magistrate Judge

INTRODUCTION

The plaintiffs in these related cases — property owners and organizations representing property owners in Alameda County and the City of Oakland — contend that the County and City violated their rights under the U.S. and California Constitutions by prohibiting the eviction of non-paying tenants during the COVID-19 pandemic. In Williams v. Alameda Cnty., No. 22-cv-01274-LB, the plaintiffs claim that ordinances enacted by the County and City are takings under the Fifth Amendment to the U.S. Constitution, inverse condemnations under the California Constitution, and violations of their due-process and equal-protection rights under the Fourteenth Amendment to the U.S. Constitution.¹ In Cal. Apartment Ass'n v. Alameda Cnty., No. 22-cv-02705-LB, the plaintiffs challenge the County ordinance through similar taking and due-process claims under the U.S. Constitution and a similar inverse-condemnation claim under the California Constitution. They also claim a substantial impairment of their lease agreements, in violation of the Contracts Clause of Article I of the U.S. Constitution, and preemption of the ordinance under Article XI, § 7 of the California Constitution to the extent that the ordinance prohibits Ellis Act evictions under Cal. Gov't Code § 7600 (which allows landlords to withdraw rentals from the market under certain circumstances).²

The plaintiffs previously moved for summary judgment, contending that the ordinances are facially invalid because (1) both ordinances are physical or per se takings under the Fifth Amendment, (2) the County's ordinance violates the Contracts Clause, (3) both ordinances are procedural-due-process violations under the Fourteenth Amendment, and (4) both ordinances are preempted by, or violations of, state law. The court denied summary judgment.³ The plaintiffs moved to certify the summary-judgment order for interlocutory appeal under 28 U.S.C. § 1292(b) and stay the cases.⁴

The motions are denied. Although the court would otherwise certify the Fifth Amendment takings issue and stay the cases pending appeal, another case already on appeal squarely presents the takings issue to the Ninth Circuit. Thus, under § 1292(b), an immediate appeal would not "materially advance the ultimate termination of the litigation."

The court has federal-question jurisdiction. 28 U.S.C. § 1331. All parties consented to magistrate-judge jurisdiction.⁵ 28 U.S.C. § 636(c). The court held a hearing on February 9, 2023.

LEGAL STANDARD

Section 1292(b) provides a means for litigants to bring an immediate appeal of a non-dispositive order with the consent of both the district court and the court of appeals. 28 U.S.C. § 1292(b); In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1981). The district court may certify an order for interlocutory appellate review under § 1292(b) if the following three requirements are met: (1) there is a "controlling question of law;" (2) there are "substantial grounds for difference of opinion;" and (3) "an immediate appeal may materially advance the ultimate termination of the litigation." In re Cement Antitrust Litig., 673 F.2d at 1026. Also, certification is appropriate "only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." Id. (citing U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966)).

If the Ninth Circuit agrees to take the appeal, it acquires appellate jurisdiction over the entire order in question, even if the district court certified only one of several issues in that order. See, e.g., Canela v. Costco Wholesale Corp., 971 F.3d 845, 848-49 (9th Cir. 2020). The Ninth Circuit's jurisdiction also "extends to a question outside the order when such question is 'material' to the certified order." See, e.g., ICTSI Or., Inc. v. Int'l Longshore & Warehouse Union, 22 F.4th 1125, 1132-33 (9th Cir. 2022). But the Ninth Circuit may, in its discretion, choose to address only the issues certified by the district court. Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688-89 (9th Cir. 2011).

For the first § 1292(b) prong, the question certified must be one of law, not fact. ICTSI Or., 22 F.4th at 1131-32. A mixed question of law and fact, such as one that requires applying the legal standard to the facts of the case, is not by itself appropriate for certification. Id.; Steering Comm. v. United States, 6 F.3d 572, 575-76 (9th Cir. 1993); Ill. Union Ins. Co. v. Intuitive Surgical, Inc., No. 13-cv-04863-JST, 2016 WL 5905935, at *2-3 (N.D. Cal. Oct. 11, 2016) (denying interlocutory appeal where movant argued only for certification of a mixed question of law and fact in an order denying summary judgment); Lovett v. Omni Hotels Mgmt. Corp., No. 14-cv-02844-RS, 2016 WL 7732622, at *2 (N.D. Cal. Apr. 18, 2016) (a summary-judgment order about "material disputes of fact" did not "present[ ] clean controlling questions of law for appellate review"). But where the mixed question is coupled with a "pure legal question," such as whether the district court applied the correct legal standard, both questions can be certified — or at least, the Ninth Circuit may in its discretion exercise appellate jurisdiction over both. Steering Comm., 6 F.3d at 575-76.

The Ninth Circuit defines a "controlling" question as one for which "resolution . . . on appeal could materially affect the outcome of litigation in the district court." In re Cement Antitrust Litig., 673 F.2d at 1026. A question may be controlling even though its resolution does not determine who will prevail on the merits. Id. at 1026-27. But it is not controlling simply because its immediate resolution may promote judicial economy. Id. at 1027.

Regarding the second prong, "courts must examine to what extent the controlling law is unclear." Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). "Courts traditionally will find that a substantial ground for difference of opinion exists where the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented." Id. (cleaned up).

Finally, the Ninth Circuit has not expressly defined material advancement of the ultimate termination of the litigation. But "neither § 1292(b)'s literal text nor controlling precedent requires that the interlocutory appeal have a final, dispositive effect on the litigation, only that it 'may materially advance' the litigation." Reese, 643 F.3d at 688 (where reversal may take certain claims or parties out of case, it may materially advance the litigation). And an immediate appeal will not materially advance the ultimate termination of litigation where the appeal might postpone the scheduled trial date. See Shurance v. Plan. Control Int'l, Inc., 839 F.2d 1347, 1348 (9th Cir. 1988).

ANALYSIS

The plaintiffs moved to certify all issues decided in the court's summary-judgment order for interlocutory appeal under § 1292(b). The four issues are whether the ordinances are (1) a physical or per se taking under the Fifth Amendment, (2) a violation of the Contracts Clause, (3) a procedural-due-process violation under the Fourteenth Amendment, and (4) preempted by, or a violation of, state law.⁶ The defendants argue only...