[00:00:06] Speaker 00:
Good morning.

[00:00:09] Speaker 00:
May it please the court.

[00:00:10] Speaker 00:
My name is Stephen Barrick.

[00:00:12] Speaker 00:
I am the attorney for appellate JD Bowles.

[00:00:16] Speaker 00:
I've informed the clerk, Your Honor, that I will be doing my opening argument for six minutes and have reserved four minutes for rebuttal.

[00:00:24] Speaker 03:
Counsel, please be reminded that the time shown on the clock is your total time remaining.

[00:00:28] Speaker 00:
I understand, Your Honor.

[00:00:29] Speaker 00:
Thank you.

[00:00:30] Speaker 00:
All right.

[00:00:31] Speaker 00:
May it please the court, as I mentioned earlier, my name is Stephen Barrick.

[00:00:37] Speaker 00:
As Chief Justice Roberts recently said in the Cedar Point nursery case, the protection of individual property is indispensable to the promotion of individual freedom.

[00:00:50] Speaker 00:
And, Your Honors, that's what this case is about.

[00:00:53] Speaker 00:
And what this case is not about, this case is not about public health.

[00:00:59] Speaker 00:
I'm sure the courts have heard a lot of cases regarding these COVID moratoriums, but that is not what this case is about.

[00:01:07] Speaker 00:
And the reason why it's not about public health is because the moratorium and the reasons for and the stated state interest or in local government interest in this case is not about public health, but rather as the city mentioned in its own moratorium and its own language is the city's desire to aid struggling businesses during hard times, which based on this press.

[00:01:30] Speaker 03:
That was anchored in the fact that of the pandemic, but for the pandemic.

[00:01:36] Speaker 03:
that circumstance would not have arisen.

[00:01:39] Speaker 00:
I would initially tend to agree with the court, Your Honor.

[00:01:42] Speaker 00:
But I think that if this court were to hold that this was about public health or it sets a dangerous precedent, meaning the stated interest, and we have to take the government at its word, for the specific commercial moratorium, it was to aid struggling businesses.

[00:02:03] Speaker 03:
And the concern would be- That wasn't everything that was said.

[00:02:06] Speaker 00:
I understand, Your Honor, but what I would say that as it related, the moratorium involved residential and commercial properties.

[00:02:13] Speaker 00:
If looking at the articulated interests of the government as it related to the spread of COVID, it was directed primarily at the residential moratorium, meaning the government was concerned about the spread of the virus.

[00:02:28] Speaker 00:
It was concerned about the spread of individuals going into local homes and combining homes and therefore potentially spreading the virus.

[00:02:36] Speaker 03:
Wouldn't those same concerns be present for people going to work in commercial establishments?

[00:02:43] Speaker 00:
Your honor, I think in this case, those concerns could potentially be present, but there's no evidence shown by the government in this case, in the lower court or in its appellate briefs,

[00:02:54] Speaker 00:
that that was, in fact, a concern.

[00:02:57] Speaker 00:
As I mentioned earlier, the primary, we have to take the government at its word.

[00:03:02] Speaker 00:
And specifically, as it related when discussing the commercial moratorium specifically, looking specifically at that moratorium, the focus was, and this is quoting them, these are not my words, it's the city's desire to- But a portion of the record, are you referencing council?

[00:03:22] Speaker 00:
the actual moratorium itself, Your Honor, which we attached, I believe, to our opening brief.

[00:03:28] Speaker 01:
Does this argument apply equally?

[00:03:31] Speaker 01:
You have really two claims, the contract clause and the takings clause.

[00:03:37] Speaker 01:
How does it impact our precedence on that, especially with respect to the contracts clause?

[00:03:48] Speaker 01:
As I understand it, correct me as you were only seeking, you weren't seeking damages.

[00:03:53] Speaker 01:
So that's gone, that's moot now, isn't it, on the contracts?

[00:03:57] Speaker 01:
Are you relying mainly on the takings?

[00:03:59] Speaker 00:
We are your honor mainly on the takings I think as a the court is pointing out a recent decision of the Ninth Circuit Dealing with the issue that there could be a potential mootness claim.

[00:04:10] Speaker 01:
I let's go to the takings clause there because Don't isn't what you have here an economic effect and for better or worse the cases say a diminution of value even a tremendous diminution of value

[00:04:28] Speaker 01:
doesn't amount to a taking unless you meet the pencentral factors.

[00:04:34] Speaker 00:
Your Honor, under, if the court were to determine that this was a regulatory taking, the court would be bringing up, I think, extremely relevant points.

[00:04:43] Speaker 00:
I think, based on our briefs, our issue, and we were really focused on two cases in particular, the Cedar Point nursery case, which is a Ninth Circuit case, and the... Go ahead.

[00:04:57] Speaker 01:
They made you let people physically come in who otherwise would not have been able to.

[00:05:03] Speaker 01:
In your case, at least, you're right.

[00:05:06] Speaker 01:
There is a person who is in possession, lawfully in possession, until they end up not paying rent.

[00:05:13] Speaker 01:
And then they just don't allow you to have certain legal processes.

[00:05:18] Speaker 00:
Well, I think, though, that it's a distinction without a difference, Your Honor.

[00:05:22] Speaker 00:
I think that once the lease is terminated,

[00:05:26] Speaker 00:
or once they're in violation of the lease, they're not in legal possession of the property any longer.

[00:05:32] Speaker 00:
Their lease hold is terminated.

[00:05:33] Speaker 03:
They're in legal possession until they have been evicted.

[00:05:36] Speaker 00:
Right.

[00:05:37] Speaker 03:
Lawfully.

[00:05:38] Speaker 00:
I understand, Your Honor, but it was the government action that prevented that from happening.

[00:05:42] Speaker 00:
in looking at, in particular, the language of the recent Supreme Court case from the Alabama Association of Realtors.

[00:05:50] Speaker 00:
That is a commercial real estate case.

[00:05:54] Speaker 01:
Didn't that really just rely on the lack of government power, period?

[00:06:00] Speaker 01:
Was it what kind of thing they were doing or how well they were doing?

[00:06:04] Speaker 01:
It was they didn't have the authority to act in that area.

[00:06:12] Speaker 00:
I'm sorry to interrupt the court.

[00:06:13] Speaker 00:
I think the importance is the language that six members of the Supreme Court went out and said.

[00:06:21] Speaker 00:
And that is the fact that the inference reading the Cedar Point case and the Alabama case together is that the right to exclude is an essential covenant within the interest of owning private property.

[00:06:37] Speaker 03:
But these tenants were not excluded.

[00:06:42] Speaker 03:
allowed to have this space contractually.

[00:06:47] Speaker 00:
Well, they were not excluded because the government prevented my client from excluding them.

[00:06:54] Speaker 02:
That's a different.

[00:06:56] Speaker 02:
I'm sorry.

[00:06:57] Speaker 02:
No, I just was going to ask, why isn't this permitted under the court's decision in Yi, where the court held that a rent control regulation is not the kind of taking

[00:07:10] Speaker 02:
that you're talking about.

[00:07:12] Speaker 02:
This seems like the same thing.

[00:07:14] Speaker 02:
It's an accommodation of a tenant.

[00:07:17] Speaker 02:
It's the landlord invited onto the property.

[00:07:20] Speaker 00:
Well, I think that, and we cite this in our reply brief, Your Honor, directly as it relates to language from Yi.

[00:07:29] Speaker 00:
Yi says, at the face of the regulatory scheme, neither the city nor the state compels the petitioner once they have rented their property

[00:07:37] Speaker 00:
to continue to do so.

[00:07:38] Speaker 00:
So even in Yi, which dealt with a rent control type situation, Yi doesn't preclude this right to exclude.

[00:07:48] Speaker 00:
And it also Yi, the language of the court in Yi specifically states that page 527 to 528 is there's nothing in their holding that requires the commercial property owner to continue to rent.

[00:08:01] Speaker 00:
In this case, by any measure, the government precluded my client from actively excluding people who exceeded- They delayed an exclusion.

[00:08:13] Speaker 00:
Well, but that is, again, the Supreme Court cases talk about that.

[00:08:18] Speaker 00:
That's a distinction without a difference, Your Honor.

[00:08:20] Speaker 00:
that here it's so crucial.

[00:08:24] Speaker 00:
And I understand the court's concern that the court initially brought up regarding COVID.

[00:08:28] Speaker 00:
I understand that.

[00:08:29] Speaker 00:
I think we all recognize the significance of that pandemic.

[00:08:34] Speaker 00:
But in this case, these are commercial leases.

[00:08:37] Speaker 00:
And all the government action did was transfer the burden from one business owner to another.

[00:08:43] Speaker 00:
And that's not effectuating the type of government interest that the Jacobson's cases seek to

[00:08:51] Speaker 03:
You're down to one minute and 17 seconds.

[00:08:53] Speaker 03:
You want to save it for rebuttal?

[00:08:54] Speaker 00:
Yes, your honor.

[00:08:55] Speaker 03:
When you come back, counsel, I would like for you to discuss the standing issue, please.

[00:08:59] Speaker 00:
Start of the what, your honor?

[00:09:00] Speaker 00:
Standing.

[00:09:00] Speaker 00:
Yes, your honor.

[00:09:11] Speaker 04:
Good morning, Your Honors.

[00:09:12] Speaker 04:
May it please the court, Elizabeth Atkins on behalf of defendant appellee Mayor Todd Gloria.

[00:09:17] Speaker 04:
Your Honors, they may one day be a case to cause this court to overturn decades of taking sure as prudence.

[00:09:22] Speaker 04:
However, this is not that case.

[00:09:24] Speaker 04:
The appellant uses hypothetical and academic arguments to sway the court, but the facts of this case keep it squarely within ye and its progeny.

[00:09:33] Speaker 04:
Accordingly, the mayor respectfully requests this court to affirm the lower court's finding that the moratorium did not affect a per se taking, and is recently confirmed by this court in the unpublished opinion, El Papel versus City of Seattle.

[00:09:47] Speaker 03:
Well, Counsel, you know unpublished opinions are not precedent.

[00:09:50] Speaker 04:
Correct, Your Honor, but given the emergency and unique situations to COVID-19, they could be persuasive on the court.

[00:09:57] Speaker 04:
Moreover, this court should affirm that appellant lacks standing to bring this case and that the contracts clause claim is now moot.

[00:10:06] Speaker 04:
Moving to that last point, first, Your Honors, there's no standing under the Contracts Clause claim because there's no longer a live controversy under Article 3.

[00:10:15] Speaker 04:
As you pointed out, Justice Boggs, as recently explained- Judge.

[00:10:19] Speaker 04:
I'm so sorry, Judge Boggs.

[00:10:21] Speaker 04:
As recently explained by this court in Jevons v. Inslee, a claim which seeks only declaratory and injunctive relief for potential past violation would amount to an impermissible advisory opinion.

[00:10:32] Speaker 04:
Here, the appellant only seeks declaratory and injunctive relief under his contracts clause claim.

[00:10:38] Speaker 04:
And that's in the record at 3ER.

[00:10:40] Speaker 01:
So if they had sought monetary damages, they might still be alive.

[00:10:45] Speaker 04:
That's correct, Your Honor.

[00:10:46] Speaker 01:
Like the Melendez case in the Second Circuit has at least opened some gates for claims for monetary damages that are as near as I can tell.

[00:10:57] Speaker 04:
But again, Your Honor, under the facts of this case, they did not seek monetary damages.

[00:11:01] Speaker 04:
And as the moratorium expired on September 30th of 2020, there's no longer an operative law to rule on.

[00:11:07] Speaker 04:
Now, while the mayor did not raise this in the briefing below, Article III issues such as mootness can be heard by the court at any time and do not need to be discussed in the record below to be heard.

[00:11:20] Speaker 03:
Counsel, could you address the immunity of the mayor?

[00:11:25] Speaker 04:
the legislative immunity, Your Honor?

[00:11:26] Speaker 03:
Yes.

[00:11:27] Speaker 04:
Because the mayor was engaged in the legislative act, the legislative immunity immunizes him from any constitutional claims for his participation in that act.

[00:11:37] Speaker 03:
In his individual capacity?

[00:11:41] Speaker 04:
As we stated in our briefs, Your Honor, the cases don't necessarily specify whether an individual capacity or an official capacity.

[00:11:50] Speaker 03:
Well, some of them do say that in the official capacity,

[00:11:55] Speaker 03:
there is legislative immunity.

[00:11:57] Speaker 03:
So by inference, the inference can be drawn that that same immunity does not apply when he is sued in an individual capacity.

[00:12:07] Speaker 03:
Do you have a case that says specifically that when an official is sued in his or her individual capacity, there is legislative immunity?

[00:12:18] Speaker 04:
I believe there was a case we cited in our briefs, and I don't have it on top of mind.

[00:12:22] Speaker 04:
I apologize, Your Honor, where a judge was sued in his official capacity and the court granted legislative immunity.

[00:12:31] Speaker 03:
Official capacity?

[00:12:32] Speaker 04:
Correct, Your Honor.

[00:12:33] Speaker 03:
Yeah, so I was asking you for a case where someone was sued

[00:12:36] Speaker 03:
in their individual?

[00:12:38] Speaker 04:
I'm so sorry, in his individual capacity.

[00:12:40] Speaker 03:
It's not a Ninth Circuit case?

[00:12:42] Speaker 04:
It's not a Ninth Circuit case.

[00:12:44] Speaker 04:
However, if the court disagrees, the city is willing to concede that issue.

[00:12:50] Speaker 04:
Moving to the takings issue, Your Honor, the appellant seeks to morph this case into Cedar Point.

[00:12:55] Speaker 04:
However, this contortion fails because landlord-tenant regulations that fall short of physical occupancy are not physical takings.

[00:13:04] Speaker 04:
The Supreme Court ruled in that case that a physical per se taking occurred because the access regulation there appropriated a right of access by a third party to enter the land.

[00:13:13] Speaker 04:
It literally took access, and thus was a taking.

[00:13:16] Speaker 04:
However, here, neither the moratorium nor the mayor forced the appellant to become a landlord and rent his property in the first instance.

[00:13:24] Speaker 04:
Rather, appellant invited them onto his property when he entered into lease agreements with them.

[00:13:29] Speaker 04:
The city did not appropriate access to an unknown or unwanted third party and did not take access from the appellant.

[00:13:37] Speaker 04:
Nor did the moratorium require the appellant.

[00:13:39] Speaker 01:
Let me ask you something about that in terms of, obviously, they partly invited and then partly wished to not invite.

[00:13:47] Speaker 01:
In Cedar Point, if the company had said, fine, you can come and organize between 10 and 12,

[00:13:57] Speaker 01:
And the state said, no, no, you've got to allow them to come for six hours a day.

[00:14:04] Speaker 01:
Would not the Supreme Court probably have come out the same way and said, it's your property.

[00:14:09] Speaker 01:
You only let them in for two hours.

[00:14:11] Speaker 01:
The state can't make you let them in for eight hours.

[00:14:16] Speaker 04:
The Supreme Court might have ruled differently in that case.

[00:14:18] Speaker 04:
It might be more like the case at the mall where the property owners were already inviting people onto the public.

[00:14:25] Speaker 04:
And so then when they wanted to limit how people were protesting at the mall, it was the use regulation.

[00:14:30] Speaker 04:
It was the law regulating the use of the people's land.

[00:14:35] Speaker 04:
If in Cedar Point, the landlords had invited organizers onto their land, that might change the characterization of their land.

[00:14:41] Speaker 04:
from fully private to now you're inviting people from the public onto it.

[00:14:46] Speaker 04:
The Supreme Court may have found that to be a use regulation versus a physical per se taking.

[00:14:52] Speaker 04:
However, here there was just simply no required acquiescence by appellants to have the tenants on the land.

[00:14:59] Speaker 04:
And that's what the Supreme Court has said in FCC versus Florida Power Corp is at the heart of the concept of occupation.

[00:15:06] Speaker 04:
Cedar Point and in these other taking cases those that entered on the land were an interloper with a government license and we simply do not have that here.

[00:15:16] Speaker 01:
So similarly if the if the stores were vacant and the city says you have to let people come in and start selling jewelry that would be an occupation?

[00:15:33] Speaker 04:
it depends your honor but the city the city says you know we need we need business in downtown san francisco where the stores are vacant so we we want you to we we order you to allow commercial people to come in and operate that would be more like a physical per se taking because it would require the landowner to landowner to have that required acquiescence and it would be essentially forcing someone onto the land that isn't an interloper with a government license

[00:16:03] Speaker 01:
Even though the commercial aspect for the landlord might be the same, you've got somebody there not paying any rent.

[00:16:12] Speaker 04:
Yes, but in that case, the appellant wouldn't be the, or the landowner wouldn't be the one who wished to enter and freely entered into the lease agreement with that.

[00:16:20] Speaker 04:
It would be, again, it would be a forced lease agreement or a forced interloper with the government license onto the landowner.

[00:16:27] Speaker 03:
Counsel, what's your response to opposing counsel's position

[00:16:31] Speaker 03:
that the moratorium for commercial properties was not adequately linked to the pandemic?

[00:16:39] Speaker 04:
Your Honor, the duality of the ordinance between residential and commercial tenants is irrelevant here because the collapse of the economy is also a substantial justification under the moratorium.

[00:16:49] Speaker 04:
The appellant spoke of public health.

[00:16:51] Speaker 04:
However, that is one stated purpose of the moratorium.

[00:16:54] Speaker 04:
It's not the only stated purpose of the moratorium.

[00:16:57] Speaker 04:
And the moratorium can be found in the record at 2ER 163.

[00:17:03] Speaker 04:
COVID-19 did have a drastic negative effect on local and global economies.

[00:17:08] Speaker 04:
And the moratorium states this from interference with supply chains, reductions in tourism, employee impacts from not being able to work on their health insurance and their incomes.

[00:17:19] Speaker 04:
These goals are expressly stated in the moratorium at 2ER 164 and 166.

[00:17:27] Speaker 04:
The goals were prevented from impacting the local economy and causing financial instability for those within the city of San Diego.

[00:17:35] Speaker 04:
And the moratorium was focused on making sure that individuals had jobs to come back to and a life to come back to once the COVID-19 crisis was over.

[00:17:44] Speaker 04:
Appellant cites no authority to state that such an economic goal, a purely economic goal, is

[00:17:51] Speaker 04:
an unreasonable one.

[00:17:52] Speaker 03:
So are you conceding that it was a purely economic goal for the commercial?

[00:17:57] Speaker 04:
No, Your Honor.

[00:17:59] Speaker 04:
The commercial moratorium and the residential moratorium were intertwined, and that's why they were put in the same ordinance.

[00:18:06] Speaker 04:
It's hard to pull out, with COVID-19, to pull out these purposes from each other because they were all parsed together.

[00:18:14] Speaker 04:
If individuals lost their businesses, they could no longer pay their residential rents, and they would be evicted.

[00:18:20] Speaker 01:
But let me mention or ask you, because those aspects would not have occurred if they had had a different tenant.

[00:18:31] Speaker 01:
In other words, if he says, I want to get rid of this tenant, and I've got a paying tenant ready to go in, I mean, they say they didn't plead that.

[00:18:39] Speaker 01:
They didn't have it.

[00:18:40] Speaker 01:
But wouldn't that undermine the alleged commercial reasons for it?

[00:18:49] Speaker 04:
No, Your Honor, because it's not just focused on the harm done to the landlords, but the harm done to businesses that were forced to close under mandated state orders.

[00:18:58] Speaker 01:
Under my hypothetical, you've got a new business ready to go in, and doesn't that sound a lot more like just helping the guy who happens to be there and hurting the people that want to go in?

[00:19:13] Speaker 04:
potentially your honor, but I think that the moratorium has to focus on and may I finish answering your question the moratorium at the time had to focus on the issues that were present and the people that were there and You know the government can't take into account All hypothetical situations in the middle of an emergency situation We request the court to affirm.

[00:19:38] Speaker 04:
Thank you your honors.

[00:19:39] Speaker 04:
Thank you counsel your bottle and

[00:19:46] Speaker 00:
Yes, thank you, Your Honor.

[00:19:48] Speaker 00:
The court initially asked me to address the issue of standing, which we addressed in our opening and our reply brief.

[00:19:55] Speaker 00:
I think that Mr. Bowles, there's two issues primarily that deals with the issue of standing.

[00:19:59] Speaker 00:
I think one initially is that Mr. Bowles had virtually sole control of the LLCs involved.

[00:20:06] Speaker 03:
Well, did he?

[00:20:07] Speaker 00:
He did.

[00:20:08] Speaker 03:
Didn't his mother have a 1% interest?

[00:20:10] Speaker 00:
But in effect, and he testified in his depositions that he and he alone engaged in the contracts.

[00:20:18] Speaker 00:
He operated the LLCs.

[00:20:20] Speaker 03:
Well, the LLCs actually were the lessors, correct?

[00:20:24] Speaker 03:
They were the lessors, Your Honor, but he... So they were the parties who actually had standing.

[00:20:30] Speaker 00:
I would make the argument that Mr. Bowles actually personally suffered a loss and so not only did the LLCs have standing but Mr. Bowles had suffered a loss by not receiving compensation through the rent so he had standing himself but I also point out to the court

[00:20:48] Speaker 00:
This case was not decided for over a year, or almost a year, by the time we filed our motion for summary judgment and the court ruled.

[00:20:55] Speaker 00:
And under what we articulated, there was plenty of time to allow for an amendment.

[00:20:59] Speaker 00:
And I would submit the district court abuses discretion not allowing it.

[00:21:02] Speaker 00:
Thank you for your time, Your Honor.

[00:21:04] Speaker 03:
I asked you to address standing.

[00:21:06] Speaker 03:
I'll give you time to address whatever else you want.

[00:21:09] Speaker 00:
Thank you so much for your courtesy, your honor.

[00:21:11] Speaker 00:
I just wanted to point out one last point, and that is there is a distinction, and the vast majority of the COVID cases involve the residential moratoriums.

[00:21:22] Speaker 00:
And I can understand in light of the emergency situation why the courts have held in that way.

[00:21:28] Speaker 00:
But I would submit to this court that the commercial aspect of the case before the court

[00:21:34] Speaker 00:
allows for a distinction.

[00:21:36] Speaker 00:
And I think the government's interest has not been met, especially with the draconian actions from the government with the moratorium.

[00:21:44] Speaker 00:
And one last point.

[00:21:46] Speaker 00:
One of the instances involving Mr. Bowles involved an individual who abandoned his property.

[00:21:51] Speaker 00:
And Mr. Bowles was not allowed to effectuate the return of the property and utilize it, which the American system of law encourages the sufficient utilization of private property.

[00:22:04] Speaker 00:
He wasn't allowed to retake the property because he couldn't file the eviction.

[00:22:09] Speaker 00:
So I would argue that the moratorium was overly broad.

[00:22:12] Speaker 00:
It didn't satisfy the government interest.

[00:22:15] Speaker 00:
And based on Supreme Court precedent,

[00:22:18] Speaker 00:
I think it's clear that this was a regulatory taking, and I would ask the court to find a second.

[00:22:23] Speaker 01:
Did you plead that particular item and, as I asked earlier, plead monetary damages?

[00:22:30] Speaker 01:
Obviously, you could make an argument that either an abandoned property could have been re-let to somebody or that there was waste, but I take it you didn't plead that.

[00:22:41] Speaker 00:
We pled monetary damages, Your Honor, in the initial complaint, the actual abandonment.

[00:22:46] Speaker 01:
In the takings context, but not in the contract context?

[00:22:50] Speaker 00:
I'm sorry, Your Honor.

[00:22:51] Speaker 00:
Correct, Your Honor.

[00:22:52] Speaker 00:
I think that it's an issue, it's a factor for the Court to consider from a hypothetical perspective in looking at the moratorium itself and the overly broad nature.

[00:23:03] Speaker 00:
Look, I understand the government

[00:23:05] Speaker 00:
was confronted with a difficult situation.

[00:23:07] Speaker 00:
But I think in this case, they overreached.

[00:23:10] Speaker 00:
And I think with dealing in the taking aspect, and I'll finish at this point with the court's indulgence, it was Justice Holmes that talked about that when the court looks at a taking, a government action, is that regulation, even if it was in with the best of intentions, did it go too far?

[00:23:29] Speaker 00:
And I would submit to this court that within the context of a commercial lease

[00:23:34] Speaker 00:
Um, and moratorium in this case, the city of San Diego, whatever its best intentions went too far.

[00:23:41] Speaker 03:
Thank you, counsel.

[00:23:41] Speaker 03:
Thank you to both counsel for your helpful arguments.

[00:23:44] Speaker 03:
The case just argued is submitted for a decision by the court.

[00:23:48] Speaker 03:
The next case, California rental association versus Newsom has been submitted on the brief.