NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 25 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALIFORNIA RENTAL HOUSING No. 22-16675

ASSOCIATION; MARY MONTANO;

TRANG HO, D.C. No. 2:21-cv-01394-JAM-JDP

Plaintiffs-Appellants,

MEMORANDUM*

v.

GAVIN NEWSOM, in his official capacity as Governor of California; ROB BONTA, in his official capacity as Attorney General of California,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, Senior District Judge, Presiding

Submitted January 12, 2024** Pasadena, California

Before: BOGGS,*** RAWLINSON, and H.A. THOMAS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Danny J. Boggs, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation. California Rental Housing Association, Mary Montano, and Trang Ho

(collectively, the Landlords) appeal the district court’s dismissal of their challenge

to California’s now-expired COVID-19-related residential-eviction moratorium.1

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal of an action for lack of subject-matter jurisdiction. Ali v. Rogers, 780 F.3d

1229, 1233 (9th Cir. 2015). We affirm.

The Landlords originally challenged the moratorium on the grounds that it

violated the Constitution’s Takings Clause, Contracts Clause, and Due Process

Clause. The district court correctly held that the Landlords’ action is moot because

the moratorium has expired and there is no longer any state order for a court to

declare unconstitutional or to enjoin. In other words, “the actual controversy has

evaporated.” Brach v. Newsom, 38 F.4th 6, 11 (9th Cir. 2022). But the Landlords

argue that their claims remain live under two mootness exceptions.

1. The Landlords first argue that the voluntary-cessation exception to

mootness saves their claims. We start from the presumption that the expiration of

the moratorium legislation is enough to moot the Landlords’ claims absent evidence

of a reasonable expectation of reenactment. See Bd. of Trs. of Glazing Health &

1 The Landlords challenged Assembly Bill 832, an extension of the COVID-19 Tenant Relief Act (Assembly Bill 3088). They also sought relief from “future similar laws that continue or impose an unconstitutional moratorium on the right of rental housing owners to repossess their properties for nonpayment of rent.” 2 Welfare Tr. v. Chambers, 941 F.3d 1195, 1199 (9th Cir. 2019). “Reasonable

expectation means something more than ‘a mere physical or theoretical possibility.’”

Brach, 38 F.4th at 14 (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)).

The Landlords argue that the state’s failure to renounce the moratorium is

evidence that it may be reenacted. But they point to no authority supporting the

proposition that, in order to moot a challenge, the government must publicly

repudiate expired legislation. Their reliance on Brach is misplaced, as the issue in

that case was executive action and this court did not, as the Landlords argue, hold

that renunciation is key to all voluntary-cessation analyses. In fact, like the

challenged closures of in-person schools in Brach, the eviction moratorium here was

a “temporary measure[] designed to expire by [its] own terms,” and state courts have

been processing evictions “for more than a year.” Id. at 15.

The Landlords also assert that the Supreme Court’s decision in West Virginia

v. EPA, 142 S. Ct. 2587 (2022), counsels against a presumption of mootness for

expired legislation. It does not. To be sure, West Virginia reiterates that the

government’s burden to establish mootness is “heavy” where “[t]he only

conceivable basis for a finding of mootness in th[e] case is [the respondent’s]

voluntary conduct.” Id. at 2607. But unlike the administrative action in West

Virginia, the challenged conduct here is expired legislation. The mere fact that the

laws are no longer in effect helps the government meet its heavy burden. See

3 Chambers, 941 F.3d at 1198.

Finally, the Landlords argue that the “legal, epidemiological, and social bases

for the moratorium persist.” This argument fails, in large part because Governor

Newsom officially ended the state of emergency in February of 2023, and “the

trajectory of the pandemic has been altered.” Brach, 38 F.4th at 15. “[W]hen

circumstances change, it is not reasonable to expect simple repetition of past

actions.” Wallingford v. Bonta, 82 F.4th 797, 804 (9th Cir. 2023).

The Landlords do not cite record evidence suggesting that another moratorium

is anything more than theoretically possible. This is bare speculation, and that is not

enough to overcome the presumption of mootness. See Chambers, 941 F.3d at 1199.

2. The Landlords also argue that their claims are live under the capable-

of-repetition-yet-evading-review exception to mootness. For this exception to apply,

the Landlords must show, in part, “a reasonable expectation that they will once again

be subjected to the challenged activity.” Lee v. Schmidt-Wenzel, 766 F.2d 1387, 1390

(9th Cir. 1985). Because the reasonable-expectation analyses in the two proffered

exceptions are analogous, see Brach, 38 F.4th at 15, the Landlords’ capable-of-

repetition argument necessarily also fails.

AFFIRMED.

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