According to that trustworthy source Wikipedia, in drama, the term deus ex machina ("God from the machine") "is a plot device whereby a seemingly unsolvable problem in a story is suddenly and abruptly resolved by an unexpected and unlikely occurrence. Its function is generally to resolve an otherwise irresolvable plot situation, to surprise the audience, to bring the tale to a happy ending, or act as a comedic device." It is mostly considered a "lazy or cheap" trope.
And that takes us to the various federal, state, and local eviction moratoria that are (or were) in effect at various points in the covid epidemic. To us, those have mostly seemed like cases of kicking the can down the road (to use another overworn trope) because although couched as merely temporary withholding of the usual eviction remedy for nonpayment of rent, in a great number of cases the practical effect of these things is to force property owners to house third parties for free, because -- come on, who's kidding who now -- we all know that most of the back rent piling up never realistically going to get collected. In our view that turns what is sold as a mere delay in collection, into a process by which private property has been knowingly commandeered to house people during a public health calamity.
That's where the deus ex machina concept comes in. To us, it has seemed that the propounders of these things have not really thought out (in good faith, at least) where this all ends, and instead hoped for some kind of miracle plot device to swoop in and save the day once the music stops and the can-kicking can no longer continue. After all, at some point, everyone must realize that someone's got to eat the sandwich.
So maybe the deus is hoping against hope that tenants are going to make good on their merely delayed rent obligations. Or maybe it is making a pile of money available that property owners might access to offset the lost rent (but let's make the tenant's cooperation an essential element of the process to request it). Or maybe its what some have alleged: that these things are just a naked use of government power to transfer owners' property to tenants on for the public good.
And that, in turn, takes us to takings (we always get to takings, don't we?). Maybe -- just maybe -- the true deus ex machina are these takings claims we're now starting to see. (For the recent big federal takings challenge to the CDC moratorium, see here.)
With that, here's the complaint filed late last week in federal court, the latest takings challenge to an eviction moratorium.
This time, it's California's which, in August 2020, adopted AB 3088. That statute allows a tenant who claims decreased income or increased expenses due to the pandemic is automatically protected against eviction for rent due between March and August 2020. That window is extended to January 2021 for tenants who pay 25% of missed rent payments. Actual ability or inability to pay is irrelevant. In January 2021, California extended the moratorium to June 2021. And in June, the moratorium was extended again, to the end of September 2021.
In addition to a physical invasion takings claim, a claim that the takings are for private benefit, and an alternative Penn Central claim, the complaint asserts a Contracts Clause violation.
Relief sought: a declaration that California's moratoria are "null and void, and of no effect" (alleging that California has deprived the plaintiffs "of the rights, privileges, and immunities secured by the United States Constitution" (the right to just comp and freedom of contract), and "nominal and compensatory damages to individual Plaintiffs" for violation of their rights under section 1983.
So check it out. It isn't one of those massive, pages-long, complex-situation complaints. It won't take too much of your time.
Complaint for Declaratory and Injunctive Relief, Cal. Rental Housing Ass'n v. Newsom, No. 2:21-cv-01394-JAM...
