*1 Dist., One. Oct. Fourth Div. 1990.] D010307. [No. al., v. Appellants, K. Plaintiffs and

JOHN YEE et ESCONDIDO, and Respondent. OF Defendant CITY 11 other cases.]* [And Escondido, City D010769; Berger Mountain * H. C. v. No. N. Frances Foundation of Escondido, D010805; City dba Estates v. Richard C. Kuebler Shadows Mobile Home No. of Escondido, D010942; Amigos Moonglow City v. Casa Mobile Mobile Park De Home No. of Escondido, Escondido, City D010972; City v. Estate Limited

Home No. Vista Verde of Escondido, D011027; D011011; City Dol Mobileparks No. Robert No. Escondido West v. Escondido, Escondido, ley City D011028; Jong City et al. v. No. Glen De et al. Charles Escondido, D011029; City D011030; Imperial Mobile Estates v. No. No. Del Dios Home Escondido, City D011046; Tacey v. Mildred Escondido Mobile Estates v. No. D. Escondido, No. D011115. *2 Counsel Pech, & Robert J. K.

Jagiello Jagiello and Debra Butler for Plaintiffs and Appellants. Lincoln, R. Jeffrey City Attorneys,

David R. R. Chapman Epp, Donald Endeman, Lincoln, B. Linda Reich and Turek & Heater for Defendant and Respondent.

Opinion cases are all own Acting in these consolidated WIENER, P. J.Plaintiffs They ask us to revisit issue in Escondido. parks ers of mobilehome in Oceanside years ago several law we first considered federal constitutional Cal.App.3d Oceanside Park Owners’Assn. Mobilehome *3 made an argument In we an rejected that case Cal.Rptr. 239]. that a rent control ordinance constituted association of owners park realize a on premium tenants were able to “taking” because compensable with the compared in a rent controlled park the sale of mobilehomes Plaintiffs we setting. urge homes sold for in a nonrent control price similar recent from the Ninth relying opinion reconsider our views on more which, admittedly analysis, lengthier Circuit Court of based on an Appeals City (9th an Hall v. Santa Barbara Cir. argument. (See such accepted 833 F.2d 1986) certainly

While circuit of federal law is federal court on issues precedent deference, (Rohr entitled to substantial it is not binding. Corp. Aircraft Witkin, County 521]; San 51 Cal. P.2d Diego (1959) 2d see 9 (3d Cal. Procedure ed. We have reviewed the Appeal, p. 751.) § issue anew in of Hall. aside the effect of our decis light Putting practical ion1, we find Hall’s and reaffirm the conclusion we reasoning unpersuasive reached Oceanside. Background

Factual Procedural In City June voters in the of Escondido an initiative passed measure which enacted a Generally, mobilehome rent control ordinance. the ordi- nance for a rollback of to those provided spaces rents for mobilehome existing January on Park seek in this base adjustments 1986. owners can rent Re- filing city’s with the Mobilehome Park Rental application view Board.2

Escondido’s rent control ordinance in a vacuum. The does not exist between landlords and tenants in mobilehome is exten- parks Code, sively regulated by Residency (Civ. the California Mobilehome Law. stayed by parallel 1 The have Yees filed a action federal court which was the district judge pending Assuming Supreme court exhaustion of all state court the California remedies. review, grant Court does not the Yees will then be able to return to federal court where the judge may grant compelled feel the relief seek. district to follow Yees hand, 1357-1358), explain (post, pp. On the other as we later we think at least one United analysis postdates States which Hall demonstrates that Hall’s con decision interpretive misstep. stitutes an Mobilehome Park Rental Re members of the Escondido Council serve as the view Board. terms, tenancy may be terminated except et Under its seq.) 798 § Code, 798.56.) cause. constituting good (Civ. several reasons specified § addition, as a new tenant a who accept person owner park compelled tenant does a mobilehome from an tenant unless the new existing purchases or, tenancies, based on ability past not have the financial to pay he with the rules and regulations. demonstrated or she will not comply Code, (Civ. 798.74.) § rent control ordinance and the

It is the combined effect of the Escondido California Residence Law contend amounts to plaintiffs Mobilehome within the of the Fifth Amendment to the compensable “taking” meaning I, Consti- United States Constitution and article section 19 of California in limited They tution. note that state law compels park owner—except existing circumstances—to of an tenant’s mobilehome accept purchaser *4 result, as a new tenant. As a of used mobilehomes plaintiffs argue, price in Escondido has increased since of the rent control dramatically passage entirely ordinance due to the fact that tenants are able to monetize existing jurisdiction. the value to mobilehome owners in a rent controlled living Escondido’s rent control ordinance According plaintiffs, constitutes monetary because it transfers this interest from owners—who “taking” park normally would the value increased rents—to tenants. capture through Plaintiffs never in the rent in the sought adjustment charged base they mobilehome own under the terms of the Escondido ordinance. parks Instead, they constitutionality filed challenging this lawsuit of the ordi- they nance on its face and for the interest seeking compensation case, allege City’s has been “taken.” each the court sustained the demur- rer to the without leave and complaint to amend dismissed action.

Discussion A Mobilehomes and mobilehome are what economists refer to park spaces complementary goods. they together, Because are used there is direct necessarily inverse between the prices complementary For an in- goods. example, decrease will cause price popcorn crease the demand for popcorn Assuming supply, constant poppers. this turn will result in an increase in the price popcorn poppers. economy. effect is basic to a free “complementary good” (See, e.g., market Reynolds, Analysis 41; ed. Policy (5th 1985) p. Microeconomics: McConnell, Problems, (10th Economics: and Policies ed. Principles, p. 55.)

It is thus inevitable that reduce at least government (or where acts to limit the rental in) charged spaces, increases for mobilehome prices where, true increase. This is particularly mobilehomes will

price California, accept owner generally compel other statutes as a tenant. This assures new existing of an tenant’s purchaser limited substantially to those effect will be good that the complementary rent-controlled currently occupying spaces. mobilehomes may often be to tamper function of government “the Recognizing markets, victims” aiding (Fisher their failures and correcting with free 211, 260, 206, 1045]), L.Ed.2d S.Ct. Berkeley 475 U.S. (1986) [89 Courts have estab Supreme States and California decisions of United may, with the governments police power, adopt lished that local consistent in the market for unregulated imperfections control ordinances where e.g., excessive Pennell charge (See, allow landlords to rents. housing 1, 1, 13-15, 849].) v. San 11-12 L.Ed.2d 108 S.Ct. (1988) Jose 485 U.S. has that rent control ordi repeatedly U.S. Court reaffirmed Supreme Fifth per takings nances are not se for the Amendment’s purposes (Id. 12, 6; Power of due FCC Florida requirement compensation. 1107]; U.S. L.Ed.2d S.Ct. Corp. (1987) 458 U.S. Loretto v. Manhattan CATV Teleprompter Corp. 868, 885, The California

explained that rent control ordinances “are within the if police power reasonably calculated to eliminate excessive rents and at same time *5 just landlords with a and reasonable return on their provide property. However, if it is from the face of the that their effect apparent provisions necessarily reasonably will be to rents more than could be considered lower to be they unconstitutionally for measure’s stated required purpose, confiscatory.” (Birkenfeld City Berkeley (1976) 17 Cal.3d 165 [130 465, 550 Permian Area Cases 1001]; P.2d accord Basin Rate Cal.Rptr. 312, 337-338, U.S. 769-770 excessively high Where the for is price charged goods or services due conditions, necessarily other or unfair it follows that for monopoly price complementary goods artificially and services be low. Where a govern- will ment unfair price to reduce the excessive and purports level, goods fact that reasonable mere for price complementary rises as a an reasonable price services result does transmute otherwise regulation into a “taking.”3 compensable underlying

This was the rationale our succinct conclusions the Ocean- contention, side In from an amicus case. we describing plaintiffs’ quoted might argue monopolistic price One that have caused of used mobilehomes effects and, result, artificially regulated high prices be well. Even were such should be if this true, however, buyers suggest it is an It does not issue between mobilehome sellers. governmental regulation anything rents “taken” from landlords. of excessive “ than for required pur- rents are reduced more curiae brief: ‘[W]here results, artificially ceiling an reduced rent of the police power, poses may be sold to a tenant which existing a valuable interest to constitutes State law. The com- under the buyer requirements of the mobilehome Code, 798 et Residency (Civ. seq.) the Mobilehome Law bined effect of § Thus, owner is argues, park assures this result.’ amicus and the Ordinance [citation], lease assignment existing tenant’s accept selling bound to able to sell rent-controlled lease and a tenant with a favorable selling for the than can be obtained higher price the onsite mobilehome for identical quality in an unregulated park identical mobilehome situated 906-907.) are being charged.” (157 Cal.App.3d where rents higher flawed. “The amicus’ initial premise We then answered contention: rent which reflects structured to establish a fair base ordinance is factors. Rents pricing market conditions and relevant general incorporates of the police will not be ‘reduced more than for the required purposes power.’” (157 Cal.App.3d ordinance, like the rent control

No one can Escondido’s dispute Oceanside, tenants. ordinance in effects a transfer of value from landlords to can be a rational justified The critical is whether such a transfer question i.e., In are the controlled rents fair and reasonable. governmental purpose, Oceanside forced to deal with this and conclud important question we were Here, rationally ed the there based. plaintiffs’ complaints was it denies them never the Escondido ordinance is irrational because allege Indeed, have never attempted fair and reasonable rents. the owners they to be a “fair” rent. obtain Escondido’s for what consider approval contention, by the the absence such a we assume the rents provided are, If there The fact that used they “taking.” ordinance are fair. is no in the mobilehomes in Escondido are for more than have selling past irrelevant.

B addressing principal Instead of the fundamental question, plaintiffs place 1270.) 833 F.2d (Hall, on the Ninth Circuit’s Hall emphasis opinion. extensively Hall relies on the United States Court’s decision Lo Loretto v. Manhattan CATV 458 U.S. 419. Corp., supra, Teleprompter retto dealt a York residential landlords to required with New law which buildings. cable television to attach cables to their companies permit balancing ap court created an to the traditional multifactor exception to regulations alleged to most which proach applicable governmental action takings. governmental constitute where explained uniformly a our cases have “is permanent physical occupation property, to whether regard found a to the extent of the without taking occupation, only or has minimal eco- action achieves an benefit important public 882], 434-435 L.Ed.2d at (Id. p. nomic on the owner.” impact [73 “very (id. italics this narrow” added.) Characterizing holding p. L.Ed.2d at the court p. 886]), emphasized long [govern- “[s]o do the landlord suffer the regulations physical occupa- not to require ment] a under by analyzed tion of of his a third will be portion building party, the multifactor to inquiry generally applicable nonpossessory governmental activity.” (Id. at L.Ed.2d at p. 885].)

Implicitly conceding that the Santa Barbara mobilehome control ordinance would not constitute a under a traditional multifactor taking Hall inquiry, that the effect attempts argue grant ordinance is to tenants the right permanently the landlord’s at a re- occupy property duced rent. The thus that the opinion suggests allegations of plaintiffs’ fit within the complaint narrow Loretto and constitute a exception se per Hall, however, taking.4 does not discuss even or cite our decision in prior Oceanside. It dismisses the contrary implications other substantial prece- by dent noting that none of the cited cases has the landlord claimed “[i]n that the tenant’s right possess at reduced rental rates was others, value, transferable to that it a had market that it was in fact traded on the market and that open tenants were monetary a windfall reaping selling this right to others.” (833 1278.) F.2d at p.

Hall anis unfortunate corollary to the danger Justice Blackmun foresaw when, Loretto, dissenting he lamented “the prospect distinguishing inevitable flow of certiorari petitions attempting shoehorn insubstantial ” takings claims into ‘set formula.’ (458 U.S. at [Loretto’s] L.Ed.2d at If p. 892].)5 tenants in Santa Barbara or Escon- any dido possess rights to “permanently occupy” landlord’s property, rights those derive not from a rent control ordinance but from the state Residency Mobilehome Law which limits the circumstances under landlord terminate tenancy, imposing “good cause” standard. No case we are remotely aware of has suggested that such a regulation of the Loretto, places Other than Hall primary Rehnquist’s solitary reliance on Justice dissent to Center, Shopping court’s dismissal in Fresh Pond Inc. Callahan 464 U.S. 875 [78 question. for want of substantial federal explains, “We do 218] interpret the Fresh repudiating everything Pond dismissal as Rehnquist said Justice (833 his dissent.” F.2d at being opinion There no of the court in the case of *7 dismissal, difficulty understanding we have some panel distinguish on what basis the Hall can portions those of dissent upon which can be relied from those which cannot. 5 Even sympathetic analysis, commentators implicitly to Hall’s result have criticized its warning against “stretching government doctrine to ‘physically occupied’ conclude that has Hirsch, property (Hirsch Legal-Economic . . . .” Analysis & Rent Controls in a Mobile of 399, Vacancy Home Context: (1988) Placement Values 466.) and Decontrol 35 UCLA L.Rev. 1356 the taking within compensable constitutes

landlord-tenant of Loretto. meaning

Moreover, ability the tenant’s explain why existing fails to it later control savings recapture “monetize” the future rent takings is is somehow critical the tenants when sold Manheim, Takings Protection Clause analysis.6 Tenant Eviction (See 925, 969, has been taken 237.)7 L.Rev. fn. If an owner’s property 1989 Wis. of to whom consequence it should be no constitutional government, instance, a residential rent con- Compare, has been property given. because the simply trol which not allow rent increases does unit. Similar have withstood repeatedly tenant vacates ordinances Fisher v. unconstitutionality. (See, e.g., facial challenges alleging 682, 261], 693 P.2d dism. Berkeley 37 Cal.3d 644 (1984) Cal.Rptr. app. [209 270, 105 Park v. 2653]; 471 S.Ct. Hutton Gardens U.S. 1124 L.Ed.2d [86 case, .543 In (1975) Town 68 N.J. A.2d such a econom- Council [350 In this succeeding ic the ordinance is all tenants. spread among benefit of case, course, the Hall would assert that benefit plaintiffs and at the renting spaces the ordinance is limited to those mobilehome tenants cases, however, the value “taken” time the ordinance enacted. both identical.8 conceptually from the owner is property 347, Leveling (3d Barnegat Tp. F.2d follows Estates Bd. Cir. 898 6 Pinewood Hall, a similar suffers from defect. 7 history jurisprudence, Commenting light Supreme takings Pro on Hall of the taking approach, “finding quantifiable Ninth of a fessor Manheim observes that Circuit’s value, essentially placement in a that of Justice Holmes’ ‘monetized’ interest mobile home’s 322, (1922) repudiated Pennsylvania Co. 43 model” Coal v. Mahon 260 U.S. 393 L.Ed. “Indeed,” 1321], 968.) (Manheim, op. Wis. supra, S.Ct. 28 A.L.R. cit. 1989 L.Rev. at citing City (1978) Transp. concludes Manheim Penn Central Co. v. New York 438 U.S. 631, 652, 2646], squarely rejected 130 S.Ct. Justice Holmes’ “the Court estates, favoring ap dividing single parcels discrete Justice model into instead Brandéis’ proach looking impact value . . . . Under modern at law’s on overall [¶] law, unitary residency] impact net even approach, the economic of the state [mobilehome control, regulatory taking." when combined with local rent would be insufficient to cause 967-968, (Manheim, omitted.) op. supra, pp. at fns. cit. 8 may really It that what underlies the Hall result is the court’s doubt that mobilehome rationally legitimate governmental purpose. (See F.2d 1280- rent control furthers a at ques sympathetic This same concern has been voiced a set of commentators who shortage anything tion whether rent control to alleviate the of available mobilehomes or does Hirsch, (Hirsch supra, tenants. & lessen total economic burden on mobilehome takings pp. 461-463.) portions jurisprudence L.Rev. at While of the Court’s UCLA Lochner-type origins process, Hall’s of a have their notions of substantive due resurrection analysis (see 539]) L.Ed. has been Lochner New York 198 U.S. legit inconsistent with the modern deferential view of the nexus between criticized as Court’s governmental legislative (Manheim, op. purposes supra, means. cit. imate and chosen Hall, 86, 948-950; (Schroeder, F.2d J. dis. Wis. L.Rev. rhg. banc).) from denial en *8 necessary Beyond argument, merely its “monetization” identifies and ser- goods between the for prices charged complementary this case the and the mobilehome rental space—and vices—in it facile but irrelevant the conclusion that a justification taking uses for by has Put if the owners before charged occurred. more rents simply, park excessive, rent control were the market for used mobilehomes was price ante, artificially and fn. When unfairly (But government low. see perhaps control, acts to restore fair fact rents rent that the imposing price used unreasonably anything mobilehomes rises has not “taken” landlord, let alone caused a of the land- “permanent physical occupation” lord’s property.9

Moreover, if Loretto were not clear that a rent control enough of the considered in Hall does not a that type taking, constitute se per Co., conclusion was in FCC punctuated v. Florida Power 480 U.S. supra, 245, decided six months after Hall. Florida Power a involved federal rent control statute the amount limiting charge utilities could cable television companies for the to use right television power poles string cable. emphasized the “element of required acquiescence is at the heart (Id. of the concept occupation.” L.Ed.2d at p. 290], italics added.) The power contended “it company taking is under Loretto for a $7.15 tenant invited to lease at a rent of to remain at the regulated $1.79.” contention, (Ibid.) this Rejecting the court is the responded, “[I]t 9Hall and commentators of like view assume that the uncontrolled rent afor mobilehome Hall, space (See “fair” supra, its rental value. pay “only 833 F.2d at [Tenants Hirsch, .”]; fraction of what it is worth in rent. . . op. supra, Hirsch & cit. 35 UCLA L.Rev. p.at pad’s assume that a fair pad rental value is the market rental of a similar in a [“[W]e jurisdiction controls.”].) analysis begs without rent Such question the ultimate it for fails to acknowledge justified that rent quasi-monopolistic controls if market conditions have charge higher allowed owners to possible per rents than would be if the market were fectly (See, competitive. e.g., Housing City Cotati Alliance Better Cotati Cal.App.3d Cal.Rptr. 825].) theory, Hirsch and Hirsch take issue with such a arguing generally that mobilehome rent penalize control ordinances “irrespective landlords increases, tenants, charged of the rental rates frequency profits amount or of rent or the Hirsch, reaped by particular (Hirsch op. supra, landlords.” & cit. 35 UCLA L.Rev. at argument presumably Such an suggest meant advantage that not all landlords take quasi-monopoly they may power possess. Here, however, plaintiffs have limited themselves to a facial attack on ordinance’s constitutionality, refusing upward adjustments to seek individualized in the allowable rent as ante, provided (See 1351-1352.) for in the ordinance. theAs California explained, regulations confiscatory ultimately depends are fair or “[W]hether on determination, course, only result reached. analyzing That can be made [Citation.] challenge regulation applied [only] to the .... will declare invalid on [W]e permit confiscatory its face ‘when its terms will not those who administer it to avoid results application complaining parties.’ (Fisher City Berkeley, its to the [Citations.]” 644, 679, Cal.3d app. 2653].) Certainly dism. 471 U.S. 1124 plain- tiffs complain approach. cannot now be heard to ordinance is indiscriminate in its

1358 invitation, rent, line which separates makes difference. The not the that a commer distinction between unambiguous from Loretto is the these cases (Id. 252- at an with a license.”10 government cial and interloper lessee Mobile Home Sales Liberty accord Eamiello p. 290]; 253 L.Ed.2d [94 805, 818].) A.2d (1988) 208 Conn. 620 [546 are not Barbara or Escondido of mobilehome in Santa parks owners by or all of their property in the of some required acquiesce occupation them rent designated by government. Nothing requires third persons so, however, the they choose to do to mobilehome owners. If property local so state statute and regulated terms on do are Power, way in Loretto in no light suggests Read of Florida ordinance. occupation physical the Escondido ordinance authorizes permanent taking. se per landlord’s and therefore constitutes C (See general- Whether rent control is a idea is debatable. good politically Salins, Theory Rent and the ly, e.g., on Control Reflections Efficient 775.) footnotes of the Regulation (1988) Brooklyn L.Rev. (See, e.g., an to that debate. opinion suggest contributing interest one, interesting F.2d at fn. While it is not topic we find the p. read the of the United join. opinions discussion we As we prepared courts, the decision States Court and lower federal state in the market imperfections whether to use control as tool to correct system for bodies not a of consti- legislative question is a issue political Here, no to the persuasive reasoning tutional law for finding courts. six contrary, years ago we reaffirm what we assumed Oceanside simply was constitutional accepted principle.12 Bd., Barnegat Tp. Leveling supra, 10 TheThird Circuit in Estates 898 F.2d Pinewood adopted reasoning cite Hall’s but failed to discuss or even Florida Power. might apply It is “if the true the court Florida Power reserved the issue how Loretto renew, utilities, into, required objection, FCC in a case over to enter or refrain from future (480 terminating pole agreements.” U.S. at fn. 6 L.Ed.2d at attachment

Here, however, Residency require even the Law does not mobile- California Mobilehome simply regu It terminating” space home leases. owners “refrain tenant, requiring landlord relationship lates between the landlord and economic only good space emphasize, Loretto careful to terminate the cause. As itself was per never been viewed as a such reasonable of the landlord-tenant Power, taking. (458 p. 885]; 480 U.S. at se U.S. at see also Florida p. 290].) p. 252 L.Ed.2d at pleading We have 12 Weare to the raised the dissent that is a case. sensitive concerns this allegations complaints federal accepted plaintiffs’ as true. Our difference with the respective what Hall and Estates is not on our determinations of courts Pinewood based taking disputed requiring The circuit courts con- constitutes a factual issue evidence.

Disposition *10 affirmed. Judgment

Work, J., concurred. a HUFFMAN, J., is from an order Dissenting. This appeal sustaining such, dealing only leave to As we are with the demurrer without amend. whether, under various and our is limited to the facts pleadings inquiry by any may matter that the pleaded complaints, supplemented proper noticed, ly judicially the state facts sufficient to constitute pleadings 42 governmental (Banerian O’Malley of action a v. taking. (1974) causes 604, 919].) 611 The court should not the Cal.App.3d Cal.Rptr. uphold sustaining of a demurrer without leave to amend if there is a reasonable in the can a defect be cured amendment. possibility complaints 113, v. Los Angeles (1974) Cal.3d (Minsky Cal.Rptr. 102, 520 P.2d 726].) a majority the of these cases and ignores procedural posture decides issue the complex by characterizing without benefit of evidence. It does this the consolidated lawsuit as one challenging constitutionality the of the ante, Escondido on 1352.) its face. Yet the (Maj. opn., majority accurately also plaintiffs alleging *11 standard and not as a constitutional enacting

police power City v. citing of the regulation. (Ibid., for the application of Birkenfeld 17 Cal.3d at. Berkeley, supra, p. 165.) however, standard, to foreclose plaintiffs to use this majority

The appears of ordinance in individually the Escondido challenging operation 1357, ante, (Maj. opn., pp. the state statute. conjunction with contain mixed facial Admittedly, allegations as complaints pleaded However, because challenges to the ordinance challenges applied. could causes of action possibility plead there is a reasonable plaintiffs of the ordinance combined with the statute challenging the application decisions, Hall United States Circuit Courts of Appeals was done the two v. Cir. 833 F.2d 1270 and Pinewood City (9th 1986) Santa Barbara Leveling (3d v. Bd. Cir. 898 F.2d Barnegat Tp. upon Estates rely, complaints. which I would allow the to amend their plaintiffs plaintiffs clear, we not bound to follow decisions of majority As the makes However, even when two circuits lower federal courts on federal questions. reach the same result to allow a Appeals the United States Courts of taking by plaintiff proceed attempt prove physical application ordinance, here, inartfully is I believe this should alleged which to those decisions. give great deference in Hall its

The criticizes the Ninth Circuit decision for failure majority Park Owners’ in Oceanside Mobilehome Assn. cite our earlier decision Cal.App.3d Cal.Rptr. Oceanside 239] “ . . years ago our reliance on . what we assumed six affirms continued ante, p. 1358.) was accepted principle.” (Maj. opn., Oceanside constitutional however, difficulty, position although with this Oceanside to do with the Oceanside opinion having discussed multitude issues really with rent control of mobilehome it did dealing parks, only remotely us. The resem- address issue now before discussion entirely issue case a few which the paragraphs bles the in this contained majority succinctly fairly recites as the Oceanside ordinance was concluding structured not to reduce rents more than required for purposes ante, police power. (Maj. 1353-1354.) these opn., Respectfully, para- do not in graphs any analyze fashion the issue here. presented Consequent- ly, there is in our Oceanside nothing opinion should cited on issue and we should the Ninth perhaps forgive Circuit Court of Appeals its failure to do so. majority’s criticism of Hall and principal Pinewood is that each

opinion heavily relies on the United States Court decision of Lor- etto Teleprompter Manhattan CATV Corp. (1982) U.S. 419 [73 L.Ed.2d 102 S.Ct. Additionally, Pinewood is criticized for its 3164]. failure to discuss the later FCC v. case of Florida Power Corp. (1987) U.S. 245 1107], I majority’s submit the criticism of these two circuit court opinions is unwarranted.

Loretto makes clear physical occupation of private govern- ment action constitutes a taking to the extent of the occupation, regardless of public benefit or economic benefit to the (Loretto owner. v. Teleprompter Manhattan CATV *12 Corp., supra, U.S. at 434-435 L.Ed.2d at p. Loretto, 882].) Following courts Hall and Pinewood allowed the plaintiffs get to past dismissal stage and to attempt prove physical taking within the of Loretto. meaning Each held a physical taking was conceptually possible under the theory by raised the pleadings of those plaintiffs.

Moreover, as the majority concedes in a footnote after its discussion of how Florida Power conclusively “punctuates” that the of rent type control se, considered Hall does not constitute a taking per the Su- Court in preme Florida Power did not even consider the issue of the cable television/utility rates there ante, under its holding Loretto. (Maj. opn., Thus, fn. 11.) the precise issue before this court was not reached. FCC (See v. Florida Power Corp., 480 U.S. 251-252 at p. 290].) The majority’s reliance on Florida Power to undercut Loretto and in turn the premise of both Pinewood and Hall is therefore inapposite.

The majority’s further attempt brush this fact aside is not persausive. noted, As the court in Hall the fact a tenant’s right to occupy space truly perpetual does not defeat a claim for taking. (Hall Santa Barbara, supra, 833 F.2d If owner property required allow tenancy perpetuity compensation below market rates unless the space is terminated for good cause defined the ordinance and state statute combined in application, Loretto indicates a taking has been shown. I would thus follow the Courts of Appeals in Hall and Pinewood in allowing the plaintiffs to proceed with their cases on this issue. written, upon draws and well scholarly although opinion,

The majority law review and writers of text knowledge and own the author’s popcorn and Popcorn principles. truth economic for the commentators however, their economic analogy goods; may be complementary poppers real complex questions resolving us in assist does not Thus, uncomfort- I am pleadings. these presented economics this time. issues at resolve those attempting able with complaints to amend the parties allow we should I believe strongly this important can review and we cases respective on their put so can dissent. I therefore full record. difficult issue on Appellants’ petition for review by the Supreme Court ¡ was denied January Baxter, 1991. J., did not participate Lucas, therein. J„C. Panelli, J., were of the opinion that the petition should be granted. notes it is the combined effect of application of the ordinance the state a statute which amounts to compensable “taking” within the Fifth and Fourteenth Amendments to the Constitution, I, United States and article section 19 of California Con- ante, (Maj. stitution. opn., p. 1352.) As the majority facial recognizes, challenges are different than challenges application otherwise valid statutes and ordinances. (Maj. opn., ante, 1357, fn. 9.) Although regulation declare a invalid on its face “when its terms will not those who administer it to avoid permit confiscatory results its to the application parties ...” complaining 129, v. (Birkenfeld City Berkeley Cal.3d Cal.Rptr. 465, 550 1001]), confiscatory P.2d fairness or of a facially nature valid regulation ultimately challenge will on to the depend analyzing regulation applied. (See City Berkeley Fisher (1984) 37 Cal.3d 679 [209 allegations, they that if plaintiffs prove eluded the Hall and Pinewood could their would es- cognizable takings Assuming predicates, claim. proof tablish of the same factual we would taking. purely question find no issue of law. addition, In question whether the applied Escondido ordinance is constitutional as simply specifically argument not before Plaintiffs limited us. their claim of facial unconstitutionality. opinion preclude plaintiffs Our read or other should not be these challenging applied appropriate (e.g., prerequisites seeking adjust- ordinance as if the board) ments from the rental review are satisfied. the facts of involves challenge generally P.2d Such Cal.Rptr. case, in a vaccuum. or ordinance just the statute each particularized a constitu set forth a test for Court has Supreme While California “premature it has found it regulation, facial of a rent control tional attack applications such against specific to do so for attacks and problematic” 3d at City Berkeley, Cal. regulation. (Fisher Fisher, noted the carefully requirement our footnote “a ‘just rent controls must landlords provide mentioned Birkenfeld ” to a facial on was made reference property’ and reasonable return exercise local legitimate to a and concerned challenge