ROMAR COURT APARTMENTS LLC v. CITY OF NOVATO ET AL.

Petitioner appealed the HSC Order to the Board. (Petition, ¶ 27.) The Board decided the appeal in the City’s favor, issuing an order upholding the HSC Order and a second order deeming Building 12 a public nuisance at the City’s request (the latter of these, “the Nuisance Order”; together, the “Appeal Orders”). (Id. at ¶¶ 27, 29.) The Novato City Council issued Resolution 2025-107 upholding the Appeal Orders on December 9, 2025. (Id. at ¶ 31.) The petition contains causes of action for a writ of mandate under Code of Civil Procedure, sections 1085 and/or 1094.5 and unlawful taking of property under the California and United States Constitutions. Petitioner seeks a writ compelling Respondents to set aside the HSC Order and the Nuisance Order.

Before the Court is Respondents’ demurrer. Respondents have demurred to the Second Cause of Action only, which is the unlawful taking claim.

Legal Standard

The function of a demurrer is to test the legal sufficiency of the challenged pleading. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) As a general rule, in testing a pleading against a demurrer, the facts alleged in the pleading are deemed to be true, however improbable they may be. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567-568.) A complaint must be liberally construed and all reasonable inferences must be drawn in favor of its allegations. (Teva Pharmaceuticals USA, Inc. v. Superior Court (2013) 217 Cal.App.4th 96, 102; see also Code Civ. Proc., § 452.) The court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Calif. (1990) 51 Cal.3d 120, 125.)

In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The face of the complaint includes matters shown in exhibits attached to the complaint and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) “The only issue involved in a

1 Respondents’ unopposed request for judicial notice of the HSC Order (see RJN, Ex. A) is granted. (Evid. Code, § 452, subds. (b), (c).) This does not mean the Court accepts as true anything the HSC Order says about the conditions of Building 12. (See AL Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313.)

demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 317.)

Discussion

Petitioner’s Second Cause of Action alleges that the Appeal Orders effected unlawful takings of property. (See Petition, ¶¶ 29, 39.) The Takings Clause of the Fifth Amendment to the United States Constitution provides that private property shall not be “taken for public use[] without just compensation.” (U.S. Const., 5th Amend.) Its California counterpart provides that “[p]rivate property may be taken or damaged for a public use and only when just compensation . . . has first been paid to, or into court for, the owner.” (Cal.

Const., art. I, § 19.) “Although the California Constitution affords somewhat broader protection by also requiring compensation when property is damaged for public use, apart from this difference, the state takings clause is construed congruently with the federal clause.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 260; Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 183.)

Respondents’ primary argument is that government action amounting to code enforcement or nuisance abatement is categorically deemed not to implicate either the state or the federal takings clause as a matter of law, so neither one of the Appeal Orders is capable of qualifying as a taking. “Courts have consistently held that a State need not provide compensation when it diminishes or destroys the value of property by stopping illegal activity or abating a public nuisance.” (Keystone Bituminous Coal Ass’n v DeBenedictis (1987) 480 U.S. 470, 492, fn. 22; see also Cedar Point Nursery v.

Hassid (2021) 594 U.S. 139, 160 [“[T]he government does not take a property interest when it merely asserts a ‘pre-existing limitation upon the land owner’s title.’ For example, the government owes a landowner no compensation for requiring him to abate a nuisance on his property, because he never had a right to engage in the nuisance in the first place.”] [quoting Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1028- 1029]; People ex rel. Dept. of Transportation v. Hadley Fruit Orchards, Inc. (1976) 59 Cal.App.3d 49, 53.)

The success of this argument depends on its premise: that the government conduct Petitioner alleges in the pleading constitutes mere code enforcement and nuisance abatement activity. For this premise to hold up, the Court must be able to accept, at this stage of the litigation, that there were actual code violations at Building 12 and an actual nuisance to abate. If there were no code violations and no nuisance conditions, the Court does not see how the case law described in the last paragraph could apply.

Under those conditions, the government action at issue would not consist of “stopping illegal activity” or “abating a public nuisance” (Keystone, supra, 480 U.S. 470, 492, fn. 22), and it would not be the case that the landowner was demanding compensation for refraining from doing something he had no right to do in the first place (Cedar Point Nursery, supra, 505 U.S. 1003, 1028-1029).

Respondents cite Sansotta v. Town of Nags Head (4th Cir. 2013) 724 F.3d 533 for the proposition that even where a government has enforced its municipal codes or its nuisance laws “incorrectly[,]” that enforcement action is still considered code enforcement or nuisance

abatement and so does not constitute a taking.2 (Memorandum, p. 12.) In Sansotta, the town of Nags Head, North Carolina declared six beachfront cottages to be nuisances on two grounds, one of which was that as a result of coastal erosion, they had come to be located within land area covered by the public trust doctrine. (724 F.3d 533, 537-538.) A North Carolina state appellate court subsequently determined that a municipality, as opposed to a state, does not have authority to enforce the public trust doctrine. (Id. at p. 541.)

Accordingly, Nags Head’s nuisance order was without a legal basis to the extent it was based on the public trust doctrine. In Sansotta, the Fourth District held that Nags Head’s nuisance order did not effect a deprivation of property sufficient to support a federal procedural due process claim by the owners of the cottages. (Id. at pp. 540-541.) The court rested that conclusion in part on the idea that Nags Head officials had a good faith belief that they had authority to enforce the public trust doctrine, so what they were doing was legitimate nuisance abatement:

“We presume that the Town officials acted in good faith when issuing the nuisance declarations under the belief that they had [] authority [to enforce the public trust doctrine]. For purposes of a due process claim, we consider the Town’s actions based on the circumstances at the time the government acted, not with the benefit of later-developed law, because the purpose of the Due Process Clause is to ensure that the government treats its citizens fairly, a determination which is best made by focusing on what government officials knew and believed at the time they acted. Thus, for purposes of the Owners’ constitutional claim, that the Town ultimately lacked the authority to declare the cottages to be nuisances based on the public trust doctrine is of no import.”

(724 F.3d 533, 541-542.)

Respondents appear to rely on Sansotta for the idea that provided the government has a good faith belief that a code violation or a nuisance condition exists at a property, its action to enforce the code or abate the nuisance cannot constitute a taking, regardless of whether the code violation or nuisance condition in fact exists. However, the portion of Sansotta at issue was discussing a procedural due process claim under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, not a Takings Clause claim (Sansotta, supra, 724 F.3d 533, 540), and as the Fourth Circuit explained, the government’s state of mind is relevant to procedural due process analysis (724 F.3d 533, 541-542).

Sansotta is an insufficient basis to support an argument that if the government believes in good faith that it is properly enforcing code requirements or nuisance laws, its conduct is categorically exempt from being deemed a taking.

Also in support of its claim that code enforcement and nuisance abatement action by the government cannot constitute a taking even if the government is mistaken in thinking that action is justified, Respondents cite Allegretti & Co. v. County of Imperial (2006) 138 Cal.App.4th

2 Respondents also rely on Lingle v. Chevron U.S.A., Inc. (2005) 544 U.S. 528, 542-543, for the proposition that “even . . . allegedly unlawful” code enforcement conduct cannot constitute a taking. (Memorandum, p. 11.) Lingle does not support that proposition.

1261. The portion of Allegretti Respondents rely on discusses a California Supreme Court case called Landgate, Inc. v. California Coastal Commission (1998) 17 Cal.4th 1006. Based on Landgate’s language, the Court does not see a basis for applying it beyond claims alleging a taking on the theory that a land use regulation or a development permit issuance decision forced the petitioner to delay in developing a property. (See Landgate, supra, 17 Cal.4th 1006, 1020- 1021; see also Lockaway, supra, 216 Cal.App.4th 161, 190 [describing Landgate’s “complete holding”].)

This is not such a case. More importantly, the test Landgate set forth to determine whether there has been a taking in whichever cases fall within its reach – “whether there is, objectively, sufficient connection between the land use regulation in question and a legitimate governmental purpose so that the former may be said to substantially advance the latter” (Landgate, supra, 17 Cal.4th 1006, 1022) – is a test the U.S. Supreme Court subsequently unanimously held should not be used in takings analysis. (Lingle v.

Chevron U.S.A. Inc. (2005) 544 U.S. 528, 532, 545; Shaw, supra, 170 Cal.App.4th 229, 264 & fn. 47 [collecting cases suggesting that Lingle “eviscerate[d]” Landgate, although falling short of actually holding as such]; Lockaway, supra, 216 Cal.App.4th 161, 189-190 [questioning continued viability of Landgate].) Even if Landgate were still good law, its test does not lend itself to use at the demurrer stage. Landgate was an appeal of a final judgment, and the Supreme Court’s application of the Landgate test made heavy use of a developed evidentiary record. (See Landgate, supra, 17 Cal.4th 1006, 1023-1025.)

The Court turns to whether there is anything in the petition or subject to judicial notice that permits it to conclude, at the demurrer stage, that there were code violations or nuisance conditions at Building 12.

To begin with code violations, Petitioner does not affirmatively allege that Building 12 complied with all applicable legal requirements, or the converse – that Building 12 was not up to code. However, there is only one reasonable inference regarding Building 12’s code compliance to be drawn from the petition. Petitioner alleges that there were “issues” at Building 12 and that, after some back and forth between Petitioner and the City about these “issues,” the City issued Petitioner a building permit “for repairs and seismic upgrades[,]” followed by three “notifications for non-performance.” (Petition, ¶¶ 8-9.)

Petitioner does not allege that any of the notifications for non-performance was baseless. Petitioner acknowledges that the City issued it five administrative citations in connection with Building 12 and does not contest the factual bases for these citations, as opposed to the amount of the fines associated with them. (Id. at ¶ 11.)

Finally, Petitioner alleges a host of action on its own part intended “[t]o comply with the City’s. . . enforcement efforts” both before and after issuance of the HSC Order. (Id. at ¶¶ 13-14, 20-21.) The pleading disputes the fact that any code violation rendered Building 12 so dangerous as to justify evacuating the tenants (id. at ¶ 20), but it cannot be reasonably interpreted to dispute that code violations existed. The only reasonable inference one can draw from these allegations, taken together, is that Building 12 was not up to code.

Thus, the pleading admits that there were actual code violations at Building 12 and itself characterizes the City’s action against the building, culminating in the HSC Order, as “enforcement efforts.” (Id. at ¶¶ 10, 13, 18.) As a result, on the face of the petition, the City’s conduct leading up to the issuance of the HSC Order, and the issuance of that order itself, were code enforcement activity and so legally cannot

support a takings claim under the California or United States Constitutions.3 (Keystone, supra, 480 U.S. 470, 492, fn. 22.)

This does not end the analysis, though. Petitioner does not allege that Respondents effected a taking only by issuing the HSC Order and later affirming that order on appeal. Petitioner alleges that the Nuisance Order also constituted a taking. (See Petition, ¶¶ 39 [alleging that “the Orders” amount to unconstitutional takings], 29 [defining “Orders” to include both the Nuisance Order and the Board’s separate order deciding Petitioner’s appeal of the HSC Order in the City’s favor].) According to the Petition, the Nuisance Order was distinct from the HSC Order and was the product of a request the City made to the Board after issuance of the HSC Order. (Id. at ¶¶ 27, 29.)

Accordingly, the Nuisance Order is an independent basis for Respondents’ liability on the Second Cause of Action. Critically, the Court cannot sustain Respondents’ demurrer to the Second Cause of Action only to the extent that cause of action rests on the Board’s order affirming the HSC Order. “A demurrer must dispose of an entire cause of action to be sustained.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [no demurrers as to a portion of a cause of action].)

Unless Respondents have offered an argument capable of sustaining the demurrer to the extent the Second Cause of Action rests on the Nuisance Order, the entire demurrer must be overruled.

The Petition does not admit, even by implication, that any aspect of Building 12 constituted a nuisance. On the contrary, it pleads that the City’s claim that Building 12 was a nuisance was inadequately supported by evidence and improperly relied upon the appearance of Building 12 as opposed to health and safety considerations. (Petition, ¶ 27.) These allegations are not accepted as true against a demurrer because they are legal contentions. (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.)

Ignoring these allegations leaves the Court with a petition that does not take a clear position as to whether there were, in fact, nuisance conditions at Building 12. The Court is not permitted to arbitrarily resolve that ambiguity against Petitioner, but must construe the pleading liberally in Petitioner’s favor. (Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 376.) The pleading’s ambiguity as to the presence of nuisance conditions at Building 12 and the lack of any judicially noticeable material establishing the existence of nuisance conditions means that the Board’s issuance of the Nuisance Order cannot, at this stage, be deemed immune from takings analysis on the basis that it constitutes nuisance abatement activity.

Respondents’ remaining attacks on the Second Cause of Action are specific to the HSC Order, or the Board’s order affirming it. They argue that these cannot be takings because of the manner in which they interfered with Petitioner’s ownership of Building 12, and in particular the temporary nature of the interference. (Memorandum, pp. 13-14.) These arguments are not directed at the Nuisance Order. (Ibid.) The Court has no information before it that would even allow it to

3 Petitioner’s argument that this conclusion would render government conduct “immun[e] from constitutional scrutiny” wherever it consists of code enforcement activity (Opposition, p. 8) is overblown. Respondents’ demurrer, and this order, only address Petitioner’s takings claim. It has no bearing on Petitioner’s ability to pursue a different constitutional claim.

entertain similar arguments as to the Nuisance Order, because the Petition does not plead any facts about the content or effect of the Nuisance Order and Respondents have not asked the Court to judicially notice that order. Absent a meritorious argument for why the Second Cause of Action fails to state a claim to the extent it is based on the Nuisance Order, the Court is required to overrule the demurrer notwithstanding its conclusions regarding the other order’s ability to serve as the basis for a takings claim. The demurrer is OVERRULED.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for June 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1605267272?pwd=908CbP6TV2mhCAyai1nzo6lyz2dKaw.1

Meeting ID: 160 526 7272 Passcode: 026935

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov