Application (Final)

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R. Christopher Harshman, Esq. (248214)

rch@packetlaw.com
87 N. Raymond Ave., Suite 900
Pasadena, California 91103
Telephone: (310) 425-3529
Facsimile: (310) 307-3221
Attorney for Plaintiff Justice Aviation, Inc.
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United States District Court
CENTRAL DISTRICT OF CALIFORNIA
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Case no. 2:16cv2043 DSF (GJSx)
Justice Aviation, Inc.,

Plaintiff,
vs.
City of Santa Monica, et al,
Defendants.
PLAINTIFFS APPLICATION FOR A

TEMPORARY RESTRAINING ORDER AND
ORDER TO SHOW CAUSE WHY A
PRELIMINARY INJUNCTION SHOULD NOT
ISSUE; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF.
[DECLARATIONS OF R. CHRISTOPHER
HARSHMAN, JOSEPH JUSTICE; [PROPOSED]
ORDERS FILED CONCURRENTLY
HEREWITH]
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Pursuant to Fed. R. Civ. P. 65, Plaintiff Justice Aviation, Inc. (Justice or
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Justice Aviation) hereby applies ex parte for a temporary restraining order (TRO)
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and Order to Show Cause Why a Preliminary Injunction Should Not Issue, requiring
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defendant City of Santa Monica (the City), and all those who are in active concert or
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participation with (Rule 65(d)) the City, to stay or dismiss the unlawful detainer action
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presently pending before the California Superior Court for the County of Los Angeles
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(Los Angeles Superior Court), City of Santa Monica v. Justice Aviation, Inc., Case no.
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16R00754 (the Unlawful Detainer Action), presently set for trial on April 4, 2016.
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That Unlawful Detainer Action concerns Justices possession of certain real property
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and improvements located at the Santa Monica Municipal Airport (the Airport),
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specifically the real property and improvements located at 3011 Airport Avenue,
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APPLICATION FOR TRO AND OSC RE PRELIMINARY INJUNCTION
featuring approximately 6,720 square feet of hangar space, 2,109 square feet of office,
meeting, and conference room space, and fifteen (15) exclusive use aircraft tie-down
spaces located on the common ramp adjacent to the hangar space (the Premises).
The Unlawful Detainer Action was brought by the City against Justice in
retaliation for Justices exercise of its rights under the First and Fourteenth Amendments
to the Constitution of the United States, and in violation of the Citys federal obligations
regarding the operation of the Santa Monica Municipal Airport (the Airport),
obligations this Court and the FAA have determined remain in effect and binding upon
the City.
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If the City is successful in evicting Justice Aviation from its Airport premises, even
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for a short time, it will inevitably lead to the irreparable destruction of Justices business.
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As Justice is paying, and will continue to pay, the rent due for the premises it occupies,
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there is no likelihood of hardship to the City, and indeed public interest favors Justices
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continued paid tenancy.
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Pursuant to Rule 65(b), Local Rule 65-1, and the Courts Standing Initial Order
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( 13 and, to the extent applicable, 13), Counsel for Justice served this application and
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supporting documents together with links to the complaint and all documents filed in
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this matter to date on the City via the City Attorneys Office at ____ a.m. on Monday,
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March 28, 2016, via facsimile transmission and email. The Santa Monica City Attorneys
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Office can be reached at: 1685 Main St, 3rd Floor, Santa Monica, CA 90401, telephone
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(310) 458-8336, facsimile (310) 395-6727, email attorney@smgov.net. The City
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Attorneys Office is generally expected to oppose this application.
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This Application is based upon the Complaint on file in this action, the attached
memorandum of points and authorities, the declarations of Joseph Justice and R.
Christopher Harshman filed concurrently herewith and the exhibits thereto, and on such
additional oral and/or documentary evidence as the Court may request.
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Respectfully submitted,
Date: March 28, 2016
By: /s/ R. Christopher Harshman

R. Christopher Harshman, Esq.
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Table of Contents
Table of Contents .........................................................................4
Table of Authorities ..................................................................... 5
Memorandum of Points and Authorities ....................................... 7
I. Introduction ............................................................................................................. 7
II. Statement of Facts ..................................................................................................8
A. The Citys Federal Obligations .....................................................................8
B. The City Fails to Meet its Federal Obligations ............................................. 9
C. Justice Aviation is Inextricably Intertwined with the Airport ........................ 9
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D. The Citys Relationship with Justice Aviation .............................................. 9
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III. Legal Argument................................................................................................... 11
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A. Applicable Legal Standards ......................................................................... 11
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1. Standard for a Temporary Restraining Order............................................ 11
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2. Standard for Staying Proceedings in a State Court Proceeding ................... 12
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B. Success on the Merits ................................................................................. 12
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C. Irreparable Harm in the Absence of Preliminary Relief ............................... 13
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D. Balance of Equities; Preliminary Relief is in the Public Interest .................. 14
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E. Staying State Court Proceeding .................................................................. 15
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1. A state court stay is authorized by Acts of Congress .................................... 15
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2. A state court stay is necessary in aid of the Courts jurisdiction ................... 16
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3. A state court stay will protect or effectuate the Courts judgments ................ 16
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F. Bond Should Not Be Required .................................................................... 17
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IV. Conclusion .......................................................................................................... 17
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Table of Authorities
CASES
Alliance for the Wild Rockies v. Cottrell, 632 F. 3d 1127 (9th Cir. 2011) ----------------------- 11
Am. Trucking Assn, Inc. v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) ------------- 11
Amalgamated Clothing Workers v. Richman Bros. Co., 348 U.S. 511 (1955) ------------------ 12
Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004)------------------------------- 12
Ayres v. City of Chicago, 125 F.3d 1010 (7th Cir. 1997) ------------------------------------------- 14
Burlington Northern R. Co. v. Dept. of Revenue of State of Wash., 934 F.2d 1064 (9th Cir.
1991) ---------------------------------------------------------------------------------------------------- 16
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Cal Pharms. Assn v. Maxwell-Jolly, 563 F. 3d 847 (9th Cir. 2009) --------------------------- 11
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Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668 (9th Cir. 1988) -------------- 13
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City of Santa Monica v. United States et al, CV 13-8046 (C.D. Cal. 2014) ---------------- 8, 16
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Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780 (10th Cir. 1964) ----------------- 17
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Doran v. Salem Inn, Inc. 422 U.S. 922 (1975)------------------------------------------------------ 13
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Goldies Bookstore, Inc., v. Superior Court, 739 F.2d 466 (9th Cir. 1984) --------------------- 16
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Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U. S. 418 (2006) ---------- 12
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Grand River Enterprises Six Nations, Ltd. v. Pryor, 481 F.3d 60 (2nd Cir. 2007) ----------- 13
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Haitian Refugee Center, Inc. v. Christopher, 43 F.3d 1431 (11th Cir. 1995) ------------------- 12
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Independent Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644 (9th Cir. 2009) 14
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Johnson v. Couturier, 572 F.3d 1067 (9th Cir. 2009) --------------------------------------------- 17
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Maryland Undercoating Co. v. Payne, 603 F. 2d 477 (4th Cir. 1977) --------------------------- 11
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Midgett v. Tri-County Metro. Transp. Dist. of Oregon, 254 F.3d 846 (9th Cir. 2001) ------- 13
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Mission Power Engg Co. v. Continental Cas. Co., 883 F. Supp. 488 (C.D. Cal. 1995) ----- 11
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Mitchum v. Foster, 407 U.S. 225 (1972) ---------------------------------------------------------12, 16
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Montara Water and Sanitary District V. County of San Mateo, CV 08-02814 (N. D. Cal.,
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Feb. 26, 2009) ---------------------------------------------------------------------------------------- 15
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National Business Aircraft Association et al v. City of Santa Monica, California, Dkt. No. 16-
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14-04----------------------------------------------------------------------------------------------------- 9
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Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) --------------------------- 12
Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12 (1st Cir. 1996) ------------------ 12
Scotts Co. v. United Industries Corp., 315 F.3d 264 (4th Cir. 2002) ---------------------------- 14
Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F. 2d 1415 (9th Cir. 1984) --------------- 11
Sotormans, Inc. v. Selecky, 586 F,3d 1109 (9th Cir. 2009)------------------------------------- 14
Stuhlbarg Intl Sales Co. v. John D. Brushy & Co., 240 F.3d 832 (9th Cir. 2001) ------ 11, 13
U.S. v. City of Santa Monica, 330 Fed.Appx. 124 (2009) --------------------------------------- 15
U.S. v. Estate Preservation Services, 202 F.3d 1093 (9th Cir. 2000) --------------------------- 16
United States of America et al v. City of Santa Monica, CV 08-2695 (C.D. Cal. 2008-09) - 15
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Winter v. Natural Res. Def. Council, Inc., 555 U. S. 7 (2008) ----------------------------------- 11
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STATUTES
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28 U.S.C. 2283 ------------------------------------------------------------------------------------ 12, 15
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42 U.S.C. 1983 ------------------------------------------------------------------------------------ 15, 16
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49 U.S.C. 47101 ---------------------------------------------------------------------------------------- 8
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49 U.S.C. 47122 -------------------------------------------------------------------------------------- 16
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49 U.S.C. 47151-47153 -------------------------------------------------------------------------- 8, 16
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RULES
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Fed. R. Civ. P. 65 --------------------------------------------------------------------------------------- 17
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Memorandum of Points and Authorities
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I.
Introduction
Plaintiff Justice Aviation, Inc. (Justice or Justice Aviation) has operated from
premises at the Santa Monica Municipal Airport (the Airport or SMO)
continuously since 1992. Until July 1, 2015, Justice was a lessee of the City, but most if
not all aeronautical users leases expired on that date, including Justices.
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Despite this Court and the FAA both finding that defendant City of Santa Monica
(City) remains obligated to operate the Airport as an airport, including not
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discriminating against aeronautical users generally or individual users specifically, the
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City has refused to enter into leases past, or since, that July 1, 2015 date.
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As Justice remains improperly without a reasonable lease, the City, relying on that
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month-to-month tenant status, now seeks to evict it without cause a situation that
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would not be possible were the City honoring its federally required commitments by
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offering and entering into leases with aeronautical users of the Airport.
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Further, Justice and its founder and namesake, Joseph Justice, have been
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outspoken critics of the Citys attempts to close or suffocate the Airport. Justice Aviation
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is a complainant or plaintiff in four separate actions (three Part 16 actions brought
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pursuant to 14 C.F.R. 16.23, and a Los Angeles Superior Court class action lawsuit), in
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addition to the instant lawsuit. Justice is informed and believes, with evidence in support
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of that belief, that the Citys actions are deliberately intended to force it out of litigation.
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Justice owed no monies at the time the Unlawful Detainer Action was filed, and,
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through an agreement with the City, continues to pay rent while that action is pending.
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Justice will be irreparably destroyed if the City successfully evicts it.
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The Citys Unlawful Detainer Action must be stayed or dismissed, at least until a
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final determination can be made regarding the Citys obligations to lease Airport
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premises to aeronautical users.
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II.
Statement of Facts
A.
The Citys Federal Obligations
As the Court is aware (see, e.g., Order Granting Defendants Motion to Dismiss,
City of Santa Monica v. United States et al, CV 13-8046, ECF No. 31 (C.D. Cal., Feb. 13,
2014) (the 2014 Order to Dismiss), and as is detailed in the Complaint in this action
( 13-16, 22-25), the City owns and operates the Airport pursuant to federally required
(49 U.S.C. 47151-47153) obligations set forth in a 1948 Instrument of Transfer (the
1948 Instrument) and grant assurances (49 U.S.C. 47101 et seq) (the Grant
Assurances).
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Chafing under those restrictions, and desiring to rid itself of the Airport, the City
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has tried on several occasions to curtail operations at the Airport, with the ultimate goal
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of closing it. However, as a 1984 settlement agreement entered into by the City recites:
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The Airport serves an important role in the regional and national system of
air transportation and air commerce. It has a vital and critical role in its
function as a general aviation reliever for the primary airports in the area. As
a reliever facility the Airport attracts and provides service to general aviation
thereby diverting aircraft away from the air carrier airports and other heavily
used airports located in the Greater Los Angeles Area. Study and analysis
have confirmed this congestion and that other similar general aviation
reliever airports in the area are already heavily used and do not have the
ability to accept or absorb the service provided by Santa Monica Airport.
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Accordingly, the Citys several attempts to obtain local control of the Airport
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have been struck down by the FAA and the federal judiciary, and the City has until
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recently generally lived up to its responsibilities as the Airports sponsor, entering into
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reasonable leases with aeronautical (and other) tenants for Airport properties. The City
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began leasing premises at the Airport to Justice Aviation starting in 1992; Justice has
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operated at the Airport continuously since that time. (Declaration of Joseph Justice
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(Justice Decl.) filed concurrently herewith, 3.)
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B.
The City Fails to Meet its Federal Obligations
The Chair of the Citys Airport Commission, David Goddard, went on record
during at least one City Council meeting, stating the Commissions intent to eliminate
aviation and other incompatible uses of the Airport. (Justice Decl., 32.) Erroneously
believing its federal obligations to operate the Airport expired on or before July 1, 2015
(Id., 29, Ex. A), the City has refused to enter into leases past that date with any
aeronautical user, including Justice a situation that persists despite determinations by
the Court (see 2014 Order to Dismiss, supra) and the Federal Aviation Administration
(FAA) (Director's Determination, National Business Aircraft Association et al v. City of
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Santa Monica, California, Dkt. No. 16-14-04 (FAA, Dec. 4, 2015)) that those obligations
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remain in effect.
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C.
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Operating at the Airport for almost 25 years, Justices business is tied to that
Justice Aviation is Inextricably Intertwined with the Airport
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location. It leases the aircraft required to operate its flight school and rental operations
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from owners located in the west side of the Los Angeles metropolitan area (Justice Decl.,
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6-9). Justices 200 renters and dozens of students are likewise west side residents
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who will not follow it to a more distant airport (Id., 10-11), even if one could
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accommodate Justices operations which none can (Id., 12). If Justice were to close,
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even temporarily, its students would move to one of the four other flight schools located
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at the Airport (Id., 4; Complaint, 106), the owners of the aircraft it manages would be
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forced to make other arrangements, and its relationships with its flight instructors would
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be destroyed indeed, this has already begun, based only on the looming threat of
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eviction (Complaint, 100-105). If Justice is evicted, its business will be irreparably
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destroyed. (Justice Decl., 13.)
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D.
The Citys Relationship with Justice Aviation
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Justice has long been a vocal critic of the Citys attempts to close the Airport.
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Most recently, it has hosted political gatherings (Complaint, 80), its founder, owner,
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and namesake, Joseph Joe Justice, has spoken out at Santa Monica City Council
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meetings (Complaint, 81, Justice Decl., 31) and in Los Angeles Times interviews (Id.,
78). Justice Aviation has challenged the Citys ordinances in a formal letter (Id., 82;
Justice Decl., 20), has been named as a complainant in three Part 16 Complaints lodged
with the FAA (Justice Decl., 17, 19, 30), and is the named plaintiff in a class action
state court lawsuit challenging landing fees at the Airport (Id., 18). Justice owed the
City no rent or landing fees at the time the Unlawful Detainer Action was filed (Id.,
26), nor had it been delinquent in rent for at least the preceding seven months (Id.,
27), and any financial issues Justice had experienced had always before been worked
out amicably with the City (Id., 21). Nonetheless, the City brought the Unlawful
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Detainer Action against Justice following Justices participation in these protected
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exercises of its rights to free speech and petition.
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Justice believes and the evidence supports that this Unlawful Detainer Action
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was brought in retaliation for its exercise of these rights, and with the specific intent to
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force [it] out of the Part 16 litigation immediately. (Complaint, 62-73; Exhibits C &
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D.)
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The Unlawful Detainer Action, which the Citys Manager admits was brought
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without cause (Justice Decl., 24-25), is possible only because Justice is operating on a
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month-to-month tenancy and without a long term lease a situation the City Attorney, a
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member of the Citys Airport Commission (an attorney), and a City Council member
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(also an attorney) have acknowledged runs afoul of the Citys federal obligations. (Id.,
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33-35.)
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Justice is currently and most relevantly the complainant in the Part 16 action
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Justice Aviation Inc. v. City of Santa Monica, FAA Docket no. 16-16-07, specifically
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challenging the Citys failure and refusal to enter into leases with aeronautical users of
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the Airport, including Justice. (Id., 30, Ex. B.)
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Justice has entered into an agreement with the City to pay rent for its premises at
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the Airport while the Citys Unlawful Detainer Action is pending. Justice has been
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paying that rent and is current under its obligations to the City. (Id., 28.)
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III. Legal Argument
A.
Applicable Legal Standards

1. Standard for a Temporary Restraining Order
The standards for issuing a Temporary Restraining Order and a preliminary
injunction are substantially identical. Stuhlbarg Intl Sales Co. v. John D. Brushy & Co.,
240 F.3d 832, 839 n. 7 (9th Cir. 2001). The Ninth Circuit summarized the Supreme
Courts recent clarification of the standard for granting preliminary injunctions1 as
follows: A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
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the public interest. Am. Trucking Assn, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052
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(9th Cir. 2009); see also Cal Pharms. Assn v. Maxwell-Jolly, 563 F. 3d 847, 849 (9th Cir.
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2009). Alternatively, serious questions going to the merits and a hardship balance that
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tips sharply toward the plaintiff can support issuance of an injunction, assuming the other
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two elements of the Winter test are also met. Alliance for the Wild Rockies v. Cottrell, 632
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F. 3d 1127, 1132 (9th Cir. 2011). A serious question is one on which the movant has a
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fair chance of success on the merits. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.
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2d 1415, 1421 (9th Cir. 1984). Likewise, a strong showing of a likelihood of irreparable
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injury substantially lessens the need to demonstrate a likelihood of success on the merits
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(Maryland Undercoating Co. v. Payne, 603 F. 2d 477, 481 (4th Cir. 1977), and a strong
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likelihood of success on the merits likewise reduces the need to meet the other
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requirements. (Id.)
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Finally, where the evidence [shows] that the moving party's cause will be
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irreparably prejudiced if the underlying motion is heard according to regularly noticed
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motion procedures (Mission Power Engg Co. v. Continental Cas. Co., 883 F. Supp. 488,
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492 (C.D. Cal. 1995)), the Court may grant a temporary restraining order or other ex
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parte relief.
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In Winter v. Natural Res. Def. Council, Inc., 555 U. S. 7 (2008)

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2. Standard for Staying Proceedings in a State Court Proceeding
The Court can grant an injunction to stay proceedings in a state court when
authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments. 28 U.S.C. 2283. In Mitchum v. Foster, 407 U.S.
225, 237 (1972), the Supreme Court provides the following guidance regarding the first
provision:
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[I]n order to qualify under the expressly authorized exception of the antiinjunction statute, a federal law need not contain an express reference to that
statute. As the Court has said, no prescribed formula is required; an
authorization need not expressly refer to 2283. Amalgamated Clothing
Workers v. Richman Bros. Co., 348 U.S. 511, 516 (1955). Secondly, a federal
law need not expressly authorize an injunction of a state court proceeding in
order to qualify as an exception. Thirdly, it is clear that, in order to qualify
as an expressly authorized exception to the anti-injunction statute, an Act
of Congress must have created a specific and uniquely federal right or
remedy, enforceable in a federal court of equity, that could be frustrated if
the federal court were not empowered to enjoin a state court proceeding.
(Emphasis added.)
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B.
Success on the Merits
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To obtain a TRO or preliminary injunction, Justice must show that it is likely to
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prevail on the merits. Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 665
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(2004); Haitian Refugee Center, Inc. v. Christopher, 43 F.3d 1431, 1432 (11th Cir. 1995);
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Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996). Because
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the burdens at the preliminary injunction stage track the burdens at trial, once the
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moving party has carried its burden of showing a likelihood of success on the merits, the
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burden shifts to the nonmoving party to show a likelihood that its affirmative defense will
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succeed. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1158 (9th Cir. 2007),
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quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U. S. 418, 429
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(2006).
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Here, Justice has demonstrated that (attorney) members of the Citys Airport
Commission, City Council, and the Citys own City Attorney, each believe the Citys
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current refusal to lease Airport property to aeronautical users is impermissibly
discriminatory in violation of the Citys federal obligations. Likewise, Justice has made a
strong showing in its Complaint that the City has acted improperly in seeking to evict it
in violation of its rights under the First and Fourteenth Amendments to the Constitution
of the United States, with a specific goal of forcing [Justice] out of the Part 16 litigation
immediately. The burden now shifts to the City to establish a likelihood of prevailing on
its purported defenses (if any).
Alternately, even if Justice in some way may not have demonstrated sufficient
likelihood of success on the merits standing alone, there is at least a serious question
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regarding the merits (Justice has at least a fair chance of success), the Court should
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provide injunctive relief given that the hardship balance demonstrably does more than
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tip sharply towards Justice, who has made a strong showing of certain irreparable
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destruction, while the City will, under the requested relief, simply continue to collect
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rent as its done for almost 25 years.
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C.
Irreparable Harm in the Absence of Preliminary Relief
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A substantial loss of business absent preliminary injunctive relief is sufficient to
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demonstrate irreparable injury. Doran v. Salem Inn, Inc. 422 U.S. 922, 932 (1975); see
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also Grand River Enterprises Six Nations, Ltd. v. Pryor, 481 F.3d 60, 67 (2nd Cir. 2007).
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The party seeking the restraining order must demonstrate immediate threatened
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harm. Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988);
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see also Midgett v. Tri-County Metro. Transp. Dist. of Oregon, 254 F.3d 846, 850-851 (9th
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Cir. 2001). This harm includes the loss of prospective customers. Stuhlbarg, supra, 240
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F.3d at 841.
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Here, Justice has established that it will lose its planes, its students (current and
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prospective), its renters, and its staff, if it is forced to close. Further, an eviction will
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necessarily force its closure, as there is simply nowhere else for it to relocate to, even if
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that were a viable option and its not. The state court trial on the Unlawful Detainer
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Action which opens the door for that wholly destructive eviction is just a week away;
this immediate threatened total harm demands injunctive relief.
D.
Balance of Equities; Preliminary Relief is in the Public Interest
The Court may consider the balancing of equities and the public interest
Winter factors together. See Independent Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly,
572 F.3d 644, 657-58 (9th Cir. 2009). [T]he real issue in this regard is the degree of
harm that will be suffered by the plaintiff or the defendant if the injunction is improperly
granted or denied. Scotts Co. v. United Industries Corp., 315 F.3d 264 (4th Cir. 2002).
A plaintiff who does not have a very high probability of ultimately prevailing will be
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entitled to preliminary relief if he faces very great irreparable harm and the defendant
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very little. Ayres v. City of Chicago, 125 F.3d 1010, 1013 (7th Cir. 1997). Where the
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injunctions reach is narrow and affects only the parties, the public interest will be at
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most a neutral factor in the analysis rather than one that favors granting or denying the
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preliminary injunction. Sotormans, Inc. v. Selecky, 586 F,3d 1109, 1139 (9th Cir. 2009).
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If the requested relief is granted, Justice will continue to pay rent and run its
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business. If it is denied, and Justice is evicted, it will be fatal blow to Justice, which will
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not be able to continue operating as a business. Clearly, the balance of equities tips
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entirely towards the granting of Justices requested relief. The City simply will not be
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harmed by Justice continuing to occupy the Premises and pay rent for it.
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Too, the requested relief affects only the parties. Even if Justice were to be evicted
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and close, its students and renters would simply move to one of the four remaining flight
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school operations at the Airport (each of which offer flight instruction and aircraft
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rental), with no net reduction in aircraft operations. Also, the federal statutes creating the
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Citys obligations, and the FAAs tireless defense of the Airport and enforcement of
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those obligations, demonstrate that continued operation of the Airport and its fixed base
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operators is clearly in the public interest.
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Justice requests only that the City be required to comply with the law. The City
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can point to no hardships that will result, as the City has already agreed to collect rent
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from Justice during the pendency of litigation, and Justice agreed to pay, has been
paying, and will continue to pay that rent. These factor also dictates granting the
requested injunctive relief.
E.
Justice is not requesting this Court issue a stay to the Los Angeles County
Superior Court, but even if it was, such a stay would be well within the Courts authority.
1. A state court stay is authorized by Acts of Congress
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Staying State Court Proceeding
While interpreting a 1947 deed transferring the federal governments interest in

the Half Moon Bay Airport pursuant to the Surplus Property Act of 1944, the United
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States District Court for the Northern District of California noted: It is well-settled that
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the construction of a deed to which the United States is a party is a question of federal
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law. Montara Water and Sanitary District V. County of San Mateo, CV 08-02814, Order
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Re Cross-motions for Summary Judgment, ECF No. 85 at *9 (N. D. Cal., Feb. 26, 2009)
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(internal quotations omitted; collecting cases). This Court has, in fact, issued temporary
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restraining orders and injunctions barring the City from taking anti-Airport actions while
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FAA proceedings interpreting the Airports Surplus Property Act 1948 Instrument of
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Transfer were pending; see, e.g., United States of America et al v. City of Santa Monica, CV
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08-26952 (C.D. Cal. 2008-09) affd, U.S. v. City of Santa Monica, 330 Fed.Appx. 124
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(2009).
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Further, civil rights actions under [42 U.S.C.] section 1983 are among the
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exceptions to [28 U.S.C. 2283] that have been expressly authorized by Act of
22
Congress. As the Supreme Court said in Mitchum, [t]he very purpose of Sec. 1983
23
was to interpose the federal courts between the States and the people, ... to protect the
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25
26
27
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See, e.g., April 28, 2008 Order Granting Temporary Restraining Order and Setting Dates for
Preliminary Injunction Hearing; Order to Show Cause why Preliminary Injunction Should Not
Issue (ECF No. 10); May 16, 2008 Order Granting Preliminary Injunction (ECF No. 20); and
December 7, 2009 Order (ECF No. 47) (enjoining the City from taking actions regarding the
Airport prior to the FAAs Final Agency Decision and/or entry of judgment by the United
States Court of Appeals).
15
people from unconstitutional action under color of state law. Goldies Bookstore, Inc., v.
Superior Court, 739 F.2d 466 (9th Cir. 1984), quoting Mitchum), supra, 407 U.S. at 242.
Finally, where the evidence shows that the defendants are engaged in, or about to
be engaged in, the act or practices prohibited by a statute which provides for injunctive
relief to prevent such violations, irreparable harm to the plaintiffs need not be shown.
Burlington Northern R. Co. v. Dept. of Revenue of State of Wash., 934 F.2d 1064, 1074 (9th
Cir. 1991); see also U.S. v. Estate Preservation Services, 202 F.3d 1093, 1098 (9th Cir.
2000) (noting that traditional requirements for equitable relief need not be satisfied
where a statute expressly authorizes the issuance of an injunction).
10
Here, Justice has demonstrated the irreparable harm that will necessarily befall it if
11
the City is permitted to continue its impermissible eviction attempt, and both the Citys
12
federal obligations and 42 U.S.C. 1983 both permit injunctive relief. Under
13
circumstances like this, the Court must order a stay, whether of the state court itself or
14
on the Citys actions therein.
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2. A state court stay is necessary in aid of the Courts jurisdiction

In these matters, the FAA has primary jurisdiction, subject to review by the
17
United States Court of Appeals for the Ninth Circuit and/or the District of Columbia
18
Circuit. 49 U.S.C. 47151(b), 47122.
19
The City in this case is attempting to force [Justice] out of the Part 16 litigation
20
immediately, which would deprive the FAA and the federal courts from exercising
21
jurisdiction over these matters (as well as Justice of its right to petition, naturally). The
22
Court should issue a stay to protect that jurisdiction.
23
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3. A state court stay will protect or effectuate the Courts judgments

In City of Santa Monica v. United States of America (CV 13-8046, supra), the Court
25
has already affirmed the Citys continuing obligation to operate SMO as an airport
26
(2014 Order, supra, at *5) for the use and benefit of the public, on reasonable terms and
27
without unjust discrimination (*4), and that the Citys obligations [to operate SMO as
28
an airport] under the Instrument of Transfer (*13) continue in effect past July 1, 2015.
16
By continuing to refuse to enter into leases with aeronautical users and by using the
impermissible lack of such a lease as an opportunity to attempt to evict Justice Aviation
the City is acting in defiance of this Courts holding. A stay is warranted to address that
recalcitrance alone.
F.
Bond Should Not Be Required
A temporary injunction issues upon the applicants giving security in such sum
as the court deems proper to pay for the costs and damages that may be incurred by any
party who is later found to have been wrongfully enjoined or restrained. Fed. R. Civ.
P. 65(c). The Court may dispense with the filing of a bond when it concludes there is no
10
realistic likelihood of harm to the defendant from enjoining their conduct. Johnson v.
11
Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (internal citations omitted). [T]he trial
12
judge has wide discretion in the manner of requiring security and if there is an absence of
13
proof showing the likelihood of harm, certainly no bond is necessary. Continental Oil
14
Co. v. Frontier Refining Co., 338 F.2d 780, 782 (10th Cir. 1964).
15
Here, the requested injunction seeks only to preserve the status quo that has
16
existed for almost thirty years; Justice will continue to occupy its premises, operate its
17
business, and pay rent and landing fees. The City will not be harmed by this state of
18
affairs indeed, it will be in a better position than it would be with Justices premises
19
sitting empty. The Court should exercise its discretion and dispense with the
20
requirement of any bond.
21
IV. Conclusion
22
If the City proceeds with its Unlawful Detainer Action against it, Justice Aviation
23
will be out of business, an irreparable harm from which there is no rebounding. Justice
24
seeks merely to maintain the status quo it will continue to pay rent and landing fees to
25
the City, and operate the same business it has been conducting for almost a quarter-
26
century. The City of Santa Monica must respect its federal obligations, and must not be
27
allowed to deprive Justice of its Constitutional rights. The City must be enjoined from
28
17
continuing its Unlawful Detainer Action, pending a final determination of the parties
respective rights and obligations.
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4
5
Respectfully submitted,
Date: March 28, 2016
By: /s/ R. Christopher Harshman

R. Christopher Harshman, Esq.
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Application (Final)

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Application (Final)

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R. Christopher Harshman, Esq. (248214)

Attorney for Plaintiff Justice Aviation, Inc.

United States District Court

CENTRAL DISTRICT OF CALIFORNIA

Case no. 2:16cv2043 DSF (GJSx)

Justice Aviation, Inc.,

PLAINTIFFS APPLICATION FOR A

Pursuant to Fed. R. Civ. P. 65, Plaintiff Justice Aviation, Inc. (Justice or

continued paid tenancy.

(310) 458-8336, facsimile (310) 395-6727, email attorney@smgov.net. The City

Attorneys Office is generally expected to oppose this application.

memorandum of points and authorities, the declarations of Joseph Justice and R.

additional oral and/or documentary evidence as the Court may request.

By: /s/ R. Christopher Harshman

Table of Contents .........................................................................4

Table of Authorities ..................................................................... 5

Memorandum of Points and Authorities ....................................... 7

II. Statement of Facts ..................................................................................................8

A. The Citys Federal Obligations .....................................................................8

B. The City Fails to Meet its Federal Obligations ............................................. 9

C. Justice Aviation is Inextricably Intertwined with the Airport ........................ 9

D. The Citys Relationship with Justice Aviation .............................................. 9

III. Legal Argument................................................................................................... 11

A. Applicable Legal Standards ......................................................................... 11

1. Standard for a Temporary Restraining Order............................................ 11

2. Standard for Staying Proceedings in a State Court Proceeding ................... 12

B. Success on the Merits ................................................................................. 12

C. Irreparable Harm in the Absence of Preliminary Relief ............................... 13

D. Balance of Equities; Preliminary Relief is in the Public Interest .................. 14

E. Staying State Court Proceeding .................................................................. 15

1. A state court stay is authorized by Acts of Congress .................................... 15

2. A state court stay is necessary in aid of the Courts jurisdiction ................... 16

F. Bond Should Not Be Required .................................................................... 17

IV. Conclusion .......................................................................................................... 17

Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004)------------------------------- 12

Doran v. Salem Inn, Inc. 422 U.S. 922 (1975)------------------------------------------------------ 13

Johnson v. Couturier, 572 F.3d 1067 (9th Cir. 2009) --------------------------------------------- 17

Mitchum v. Foster, 407 U.S. 225 (1972) ---------------------------------------------------------12, 16

Feb. 26, 2009) ---------------------------------------------------------------------------------------- 15

Sotormans, Inc. v. Selecky, 586 F,3d 1109 (9th Cir. 2009)------------------------------------- 14

U.S. v. City of Santa Monica, 330 Fed.Appx. 124 (2009) --------------------------------------- 15

Winter v. Natural Res. Def. Council, Inc., 555 U. S. 7 (2008) ----------------------------------- 11

28 U.S.C. 2283 ------------------------------------------------------------------------------------ 12, 15

42 U.S.C. 1983 ------------------------------------------------------------------------------------ 15, 16

49 U.S.C. 47101 ---------------------------------------------------------------------------------------- 8

49 U.S.C. 47122 -------------------------------------------------------------------------------------- 16

49 U.S.C. 47151-47153 -------------------------------------------------------------------------- 8, 16

Fed. R. Civ. P. 65 --------------------------------------------------------------------------------------- 17

Memorandum of Points and Authorities

premises at the Santa Monica Municipal Airport (the Airport or SMO)

discriminating against aeronautical users generally or individual users specifically, the

is a complainant or plaintiff in four separate actions (three Part 16 actions brought

Justice will be irreparably destroyed if the City successfully evicts it.

premises to aeronautical users.

The Citys Federal Obligations

(Justice Decl.) filed concurrently herewith, 3.)

The City Fails to Meet its Federal Obligations

aeronautical user, including Justice a situation that persists despite determinations by

(FAA) (Director's Determination, National Business Aircraft Association et al v. City of

Justice Aviation is Inextricably Intertwined with the Airport

eviction (Complaint, 100-105). If Justice is evicted, its business will be irreparably

destroyed. (Justice Decl., 13.)