Homes & Hope L. A. v. City of Los Angeles

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HOMES AND HOPE LOS ANGELES, LLC, et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant.

B308874

California Court of Appeals, Second District, Fifth Division

April 3, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. 20STCV07585 Randolph M. Hammock, Judge.

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Deputy City Attorney, Scott Marcus, Chief Assistant City Attorney Blithe S. Bock, Assistant City Attorney and Sara Ugaz, Deputy City Attorney for Defendant and Appellant.

Michael N. Sofris for Plaintiffs and Respondents.

RUBIN P. J.

Defendant and appellant City of Los Angeles appeals from the denial of its anti-SLAPP motion (Code Civ. Proc., § 425.16). Plaintiffs are landlords who rent units in multiple properties in the City. They brought this declaratory relief action to challenge the provisions of the City's Housing Code which provide for regular inspections of rental units. Plaintiffs allege the Systematic Code Enforcement Program (SCEP) is (1) facially unconstitutional and (2) unconstitutional as applied to them, in that their properties have been subjected to invasive inspections in retaliation for their prior litigation activities against the Housing Department.^[1]

The City takes the position that plaintiffs' as-applied challenge arises from the City's protected petitioning activity - specifically, its enforcement of SCEP - and that plaintiffs have failed to establish a probability of prevailing on their action. The trial court agreed that the as-applied challenge arose from the City's protected conduct, but concluded plaintiffs had established a probability of prevailing, and denied the anti-SLAPP motion. On the City's appeal, we agree that, as the term is used in the anti-SLAPP law, the plaintiffs established a probability of prevailing, and therefore affirm.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

1. Preliminary Observations

Plaintiffs David and Barbara Darwish are married; plaintiff Eden Darwish is their son. Together, they own or control more than 20 properties in the City. There are a number of properties at issue; the Darwishes allege they own the properties either directly, through trusts, or through companies or corporations (which also hold ownership either directly or through trusts). The Darwishes allege that the companies through which they own the properties have assigned their rights against the City to plaintiff Homes and Hope, a limited liability company. The precise owners of each property and the validity of any purported assignments are not at issue in this appeal. Unless the context otherwise requires, we refer to the plaintiffs collectively as the Darwishes.

Neither the complaint, the declarations in support of or in opposition to the anti-SLAPP motion, nor the briefs, make any effort to provide a chronological tale of the City's SCEP enforcement efforts against the Darwishes. In order to put the Darwishes' claims of retaliatory enforcement in context, we attempt to do so by relying on the (admitted) exhibits in support of and in opposition to the anti-SLAPP motion, as well as those portions of the declarations to which objections were not sustained.

2. The Prior Contentious Relationship Among the Parties

Before we discuss the prior interactions between the parties, we observe that, although this lawsuit is about the enforcement of SCEP, another ordinance - the City's Rent Stabilization Ordinance - lurks in the background. Of immediate importance to the following discussion is that the Rent Stabilization Ordinance requires landlords to annually register all of their units subject to that ordinance. (L.A. Mun. Code, § 151.05, subd. J.1.) In the underlying dispute, the Darwishes take the position that SCEP is limited only to units subject to the Rent Stabilization Ordinance. The City disagrees. We need not resolve the issue in this appeal. What matters is that the Darwishes have alleged this connection between the two ordinances, such that a property's exemption from the Rent Stabilization Ordinance also constitutes an exemption from SCEP.

A. Almont Civil and Criminal Actions

The Darwishes own a rental property known as the "Almont Property." According to their complaint, in 2009, the Housing Department "refused to renew the registration of four rental units at the Almont property." The Housing Department took the position that the property was limited to only two rental units.^[3] Barbara Darwish "commenced an action and a writ proceeding" against the Housing Department to compel it to renew the registration of all four units, which action and writ proceeding were consolidated into a single action.^[4] (Darwish v. City of Los Angeles (Super. Ct. L.A. County, No. BC398784).) Ultimately, each party was partially successful. Judgment was entered on October 6, 2011. The trial court held that Barbara Darwish was entitled to a writ of mandate as the Housing Department "has a ministerial duty under its Rent Stabilization Ordinance, to register or renew registration of [the] four rental units on [her] property, upon payment by [Barbara Darwish] of the fees required to register four units . . . ." The court further explained that the City "does not authorize its Housing Department to use the ministerial provisions of the Rent Stabilization Ordinance to force a landlord to comply with the City's building code." However, the court also entered judgment in favor of the City on Barbara Darwish's cause of action "for Estoppel." The court concluded that the City could not be estopped from requiring a valid certificate of occupancy for the building, even though it had been used for decades as four units.

On January 28, 2010, while the Almont civil action was ongoing, the City filed a misdemeanor complaint against David and Barbara Darwish alleging criminal responsibility for building code violations at the Almont property - including unlawfully using the property without a certificate of occupancy.^[5] (People v. Darwish (Super. Ct. L.A. County, 2010, No. 0HY05011) On February 10, 2012 - three months after the civil case was resolved - the City dismissed the criminal complaint.

B. Crestmont/Effie Action

The Darwishes own a property with the two addresses 3512 W. Crestmont Avenue and 3511 Effie Street. Both homes are on a parcel with a single lot number. According to the Darwishes, there was a "lot cut" line on the map, separating the parcel into two smaller lots, each with a single-family dwelling.^[6] On October 18, 2018, Eden Darwish (the son) brought suit against the City, for inverse condemnation and declaratory relief, alleging that the city arbitrarily, capriciously, and negligently erased the lot cut line between the two properties. (Darwish v. City of Los Angeles Bureau of Engineering (Super. Ct. L.A. County, 2018, No. 18STCV02108).) In that case, plaintiff Eden Darwish alleged the following: the Housing Department attempted to inspect the properties under SCEP in 2010 and 2014, but the Darwishes refused consent, on the basis that the homes were two separate single-family residences. The City illegally inspected the property in 2014, finding a number of Housing Code violations. On the Darwishes' administrative appeal, the violations were upheld. Thereafter, the Housing Department communicated with the Bureau of Engineering and, at the direction of the Housing Department, the Bureau of Engineering erased the lot cut line between the properties, "for the purpose and with the effect of establishing [Housing Department] jurisdiction over the Crestmont/Effie Property and to impose the requirements of [the Rent Stabilization Ordinance on the property] without notice to Eden and an opportunity to be heard, . . ." Our record does not disclose the status of this lawsuit.

3. Alleged Retaliatory Enforcement of SCEP

The Darwishes allege that, as a result of their successful prosecution of the Almont writ of mandate, and their continued litigation against the City in Crestmont/Effie matter (among other legal challenges), they have become a target for retaliation by the Housing Department. They allege the Housing Department exercises its discretionary authority under SCEP to conduct repeated inspections of their properties, and cite them for "picayune and super-technical nit-picking" violations, in order to justify sanctions against them.^[7] Before we discuss the specific allegations, a brief overview of SCEP is helpful.

A. SCEP

SCEP is best understood in the context of the U.S. Supreme Court decision in Camara v. Municipal Court of San Francisco (1967) 387 U.S. 523. In that case, the Supreme Court upheld administrative searches of real property based on "reasonable legislative or administrative standards for conducting an area inspection." (Id. at p. 538.) "Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building (e.g., a multi-family apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling."^[8] (Ibid.)

The administrative standards set forth in SCEP are based on time alone. SCEP provides that the Department "shall make a reasonable effort to conduct a periodic inspection once every four years of all residential rental properties, buildings, units and structures falling within the scope of this Article." (L.A. Mun. Code, § 161.602, subd. A.)

A routine inspection is commenced by service on both the landlord and tenant of a notice of inspection, at least 30 days in advance of the inspection date. (L.A. Mun. Code § 161.601, subd. B.) The landlord and the tenant may object to the inspection notice by seeking...