Southern California Rental Housing Association v. County of San Diego

550 F.Supp.3d 853

SOUTHERN CALIFORNIA RENTAL HOUSING ASSOCIATION, Plaintiff,

v.COUNTY OF SAN DIEGO, Board of Supervisors of the County of San Diego, Defendant.

Case No. 3:21cv912-L-DEB

United States District Court, S.D. California.

Signed July 26, 2021

Paul J. Beard, II, FisherBroyles LLP, Los Angeles, CA, for Plaintiff.

John P. Cooley, County Counsel, San Diego, CA, for Defendant.

ORDER:

(1) DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION [ECF NO. 7],

(2) GRANTING REQUEST FOR JUDICIAL NOTICE, and(3) DENYING MOTION TO EXPEDITE AS MOOT [ECF NO. 31.]

M. James Lorenz, United States District Judge

Pending before the Court is Plaintiff's Motion for Preliminary Injunction. [ECF No. 7, ("Mot.").] On June 7, 2021, Defendants filed an Opposition, and Intervenors Alliance of Californians for Community Empowerment Action also filed an Opposition. [ECF Nos. 18, 19.] On June 14, 2021, Plaintiff filed a consolidated Reply. [ECF No. 24.] The Court has reviewed the motion, opposition, reply, exhibits and declarations, and for the reasons stated below, denies Plaintiff's Motion on the papers submitted.

I. Factual Background

Plaintiff Southern California Rental Housing Association ("SCRHA" or "Plaintiff") challenges the eviction moratorium imposed by Ordinance 10724 which was enacted by County Defendants ("County") on May 4, with an effective date of June 3. Plaintiff SCRHA is a membership-based trade association located in Southern California that serves to protect and advocate for the rights of rental housing owners. (Mot at 11). Prior to the Ordinance's enactment, SCRHA provided comments to the San Diego County Board of Supervisors recommending the Board reject adoption of the moratorium. (Id. at 12). SCRHA asserts that individual members including Michael and April Solis, and Irma Pintor, among others, are "suffering mental and emotional anguish because of the moratorium, as they face problematic tenants who are damaging property, creating nuisances, and disturbing the peace and quiet enjoyment that good tenants are entitled to." (Id. at 14).

The worldwide outbreak of the novel coronavirus respiratory disease, abbreviated as COVID-19, began in early 2020. Governments quickly realized that it was incumbent on them to enact laws to slow the spread of this highly contagious and deadly virus. On January 30, 2020, the World Health Organization ("WHO") declared a Public Health Emergency of International Concern due to the COVID-19 virus. See WHO Director-General's Statement on IHR Emergency Committee on Novel Coronavirus (2019-nCoV), World Health Organization (Jan. 30, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-statement-on-ihr-emergency-committee-on-novel-coronavirus-(2019-ncov). On January 31, 2020, Health and Human Services (HHS) declared a Public Health Emergency due to the COVID-19 outbreak. See Secretary Azar Declares Public Health Emergency for United States for 2019 Novel Coronavirus, U.S. Department of Health and Human Services (Jan. 31, 2020), https://www.hhs.gov/about/news/2020/01/31/secretary-azar-declares-public-health-emergency-us-2019-novel-coronavirus.html.

On February 14, 2020, the San Diego County Health Officer announced a Local Health Emergency due to COVID-19. On March 4, 2020, California Governor Gavin Newsom declared a State of Emergency. See https://www.gov.ca.gov/2020/03/04. On March 13, 2020, the President of the United States issued a declaration of a national emergency. Pres. Proc. No. 9994, 85 FR 15337, 2020 WL 1272563 (Mar. 13, 2020).

Regulations were put in place by federal, state, and local governments to slow the spread of the disease by requiring limited social contact, and self-quarantining citizens at home. On March 18, 2020, the Federal Housing Administration ("FHA") enacted a 60-day moratorium on foreclosures and evictions for single family homes with FHA insured mortgages. See https://www.hud.gov/sites/dfiles/OCHCO/documents/20-04hsgml.pdf.

On March 4, 2020, Governor Newsom issued Executive Order N-28-20, which allowed local jurisdictions to exercise their police powers to limit residential evictions. See https://www.gov.ca.gov/wp-content/uploads/2020/03/3.16.20-Executive-Order.pdf. On March 19, 2020, the Governor signed Executive Order N-33-20, "stay-at-home" orders directing all Californians to stay home except to travel to shop for essential needs, or to go to what was defined an "essential" job. Id. The stay-at-home orders were continued in December. Due to the restrictions on employment, many San Diegans lost their jobs, and suffered economic instability, including the inability to pay rent. The County of San Diego was already experiencing a severe affordable housing crisis, and almost 46% of the housing units are occupied by renters. Cal. Hous. Partnership, San Diego County 2021 Affordable Housing Needs Report 1 (2021) https://chpc.net/resources/san-diego-county-housing-need-report-2021/.

Recognizing that eviction and homelessness would leave residents more vulnerable to COVID-19 due to living in close quarters in shelters, or on the street, the State Legislature enacted eviction protections in Assembly Bill 3088 and Senate Bill 91. On May 4, 2021, the San Diego County Board of Supervisors passed Ordinance 10724, the Ordinance in question here. ("Ordinance") The Ordinance is a short-term moratorium on specific residential evictions that was set to begin June 3, 2021, and end "60 days after the Governor lifts all COVID-19 related stay-at-home and work-at-home orders." (Mot. Exhibit A at 9) The stay-at-home and work-at-home orders expired on June 15, 2021, making the Ordinance's tentative expiration date August 14, 2021.

The Ordinance¹ sets forth the background of the COVID-19 emergency in Section 1, and explains that its purpose is to

require[ ] just cause for termination of a residential tenancy and provide[ ] additional tenant protections that are not prohibited by any other provision of law, and ... serve justice and promote racial equity for renters in the County of San Diego and serve[ ] to preserve the public health and safety which is threatened by COVID-19 and ... keep the residents of the County of San Diego housed.

Ordinance § 3 (ff)

"Just cause" requires "a showing that the Tenant is an imminent health or safety threat." Ordinance § 3(b). "Imminent health or safety threat" is defined as: "a hazard to the health or safety of other tenants or occupants of the same property, taking into account (1) the risk of potential spread of coronavirus caused by the eviction, in case of a Local Emergency due to COVID-19, (2) any public health or safety risk caused by the eviction, and (3) all other remedies available to the landlord and other occupants of the property, against the nature and degree of health and safety risk posed by the tenant's activity." Ordinance § 2(b).

To facilitate the purpose of the Ordinance, Owners are prohibited from the following actions to recover possession of their property:

1) "Serve a notice of termination of tenancy"; 2) "File or serve an unlawful detainer lawsuit, ejectment action, or other action to recover possession of a residential unit"; 3) "Evict a tenant or require a Tenant to vacate a residential unit," including enforcing final court judgments authorizing repossession of said unit; 4) "Take any other action in reliance on a notice of termination of tenancy that expired during the Local Emergency [defined as "any period of local emergency declared by the County of San Diego in response to the COVID-19 pandemic"] or attempt to induce a tenant to vacate based on such notice"; 5) "Represent to a Tenant that [he] is required to move out of their unit by law."

Ordinance § 3(c).

The Ordinance specifically notes that "[n]othing in this ordinance shall relieve a Tenant of the obligations to pay rent, nor restrict a Landlord's ability to recover rent due." § 3(k). Under the remedies section of the Ordinance, Landlords are prohibited from recovering "possession of a rental unit or prevail[ing] in an unlawful detainer action, ejectment action, or other action to recover possession of a residential unit unless the Landlord is able to prove strict compliance with any applicable provision of the Ordinance. § 7(a)

Plaintiffs seek to enjoin the Ordinance's enforcement in whole, or at a minimum, enjoin its application outside the unincorporated areas of the County, arguing that it is unconstitutional because it violates the Contracts Clause and the Takings Clause of the United States Constitution, and violates the California Constitution. (Motion at 9).

II. Legal Standard

"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 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A preliminary injunction may only be granted if the moving party made a "clear showing" of entitlement to relief. Id. at 22, 129 S.Ct. 365. The requirement for substantial proof in support of a preliminary injunction is "much higher" than the proof necessary to overcome a summary judgment motion. Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997).

[T]he elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another. For example, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits. [The Ninth] circuit has adopted and applied a version of the sliding scale approach under which a preliminary injunction could issue where the likelihood of success is such that serious questions going to the merits were raised and the balance of hardships tips sharply in plaintiff's favor. That test was described in this circuit as one alternative on a

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