April 21, 2020

Honorable Members of the City Council

Los Angeles City Hall
200 N. Spring Street
Los Angeles, CA 90012

Re: Legal Analysis of Proposed Renter Protections in Council Files 20-0404, 20-0409, 20-0407

Dear Honorable Council Members:

The undersigned public interest and civil rights law firms write in support of several motions that
will be considered by the Los Angeles City Council on April 22, 2020, including agenda item number 37
(CF 20-0407) relative to a rent freeze; agenda item number 38 (CF 20-0409) relative to clarifying that
unpaid rent is not subject to the unlawful detainer process; and agenda item number 39 (CF 20-0404)
relative to prohibiting the termination of a tenancy during the State of Emergency.

This current public health crisis is the worst we have seen in a century. More than 40,000 people
have died across the country, including over 600 in Los Angeles County, and the toll will continue to rise
in the coming weeks.1 Due to the strict but necessary Safe at Home orders, businesses have shut down or
drastically scaled back across the city, causing massive worker layoffs. According to recent estimates,
less than half of Los Angeles County residents are still employed.2 The impact of these layoffs is that
millions of Angelenos are wondering how they are going to afford rent and put food on the table. And the
crisis is disproportionately affecting Black and Brown communities, reflecting entrenched structural and
economic inequalities.3

As public interest law firms serving the most vulnerable residents in Los Angeles County, we are
seeing firsthand these devastating impacts of COVID-19. As housing lawyers, we are working around the
clock to provide direct services and advocacy support in the midst of this terrible confluence of a
catastrophic public health disaster and a worsening crisis of housing instability and homelessness. The
simple fact is that Angelenos are only safer at home if they can stay in their homes. While the Mayor and
City Council adopted important protections over the last several weeks, the current policies still have
substantial gaps that need to be addressed. Our organizations continue to be inundated with calls from
tenants who are receiving eviction notices, being locked out of their homes, being intimidated or harassed,
being asked to sign forms and produce documents with personal information, or are generally confused
about their rights under the existing patchwork of new laws. Tens of thousands more, who are unable to
access legal services, are enduring the same conditions.

This crisis demands bold actions from our leaders. In reference to the sweeping emergency rules
adopted by the Judicial Council on April 6th, Chief Justice Tani Cantil-Sakauye wrote: “We are at this
point truly with no guidance in history, law, or precedent. And to say that there is no playbook is a gross

1
”Novel Coronavirus in Los Angeles County,” County of Los Angeles Public Health, last updated April 20, 2020,
http://publichealth.lacounty.gov/media/Coronavirus/locations.htm.
2
“Less than half of L.A. County residents still have jobs amid coronavirus crisis,” Jaclyn Cosgrove, Los Angeles
Times April, 17, 2020, https://www.latimes.com/california/story/2020-04-17/usc-coronavirus-survey.
3
“’A crisis within a crisis’: Black Americans face higher rates of coronavirus deaths,” Jenny Jarvie and Molly
Hennessy-Fiske, Los Angeles Times, April 7, 2020, https://www.latimes.com/world-nation/story/2020-04-07/a-
crisis-within-a-crisis-black-americans-face-higher-rates-of-coronavirus-deaths.

1
understatement of the situation.”4 As the Judicial Council did in exercising its powers over the courts, so
too the City of Los Angeles must exercise its police powers to the fullest extent and take the courageous
steps necessary to keep people housed during the crisis.

I. The City Council should approve item 39 (CF 20-0404) because a complete eviction
moratorium is lawful and necessary in this moment.

A. The City’s current eviction ordinance does not prevent all evictions, leaving
thousands of Angelenos now at risk of displacement and homelessness.

We applaud the Mayor and City Council for taking action to enact Ordinance 186585 to protect
tenants against certain types of eviction during this emergency. But more is needed. The City’s current
eviction ordinance does not do enough to discourage the initiation of the eviction process, which sows
doubt and confusion leading to renters being harassed and intimidated into leaving their homes. The
ordinance also fails to provide any protections against certain types of evictions.

In Los Angeles, tenants are very often displaced from their homes even before an unlawful
detainer action is filed. Waiting for eviction proceedings to begin can severely compromise a tenant’s
ability to rent another home. Furthermore, many tenants are unaware of their rights, and have little access
to legal aid services, especially in the middle of a pandemic. This is why many of the undersigned
organizations have vigorously supported a Right to Counsel. Right now, we are far from guaranteeing
every tenant access to legal counsel, and if we wait until a court proceeding is initiated, countless tenants
will be displaced. By imposing onerous requirements that tenants must prove that nonpayment of rent is
due to COVID-19 -- a burden that disproportionately harms immigrant, gig-economy, and informal sector
workers – the City has established a confusing and overly technical framework. Unsurprisingly, in the
days after this requirement was adopted, our organizations fielded numerous calls and the media reported
on widespread examples of tenants being directed to sign documents and provide personal information
that is not legally required in order to avoid eviction. Our clients are still receiving eviction notices after
the City’s ordinance was adopted, as some landlords are already setting the stage for eviction proceedings
as soon as the courts open back up. Other clients are enduring illegal lockouts and other intimidation
tactics. If the City Council fails to strengthen the current incomplete framework, renters will only face
more confusion, harassment, and intimidation in the midst of an already unimaginable public health
threat, which will only increase the risk of displacement and homelessness during and after the
emergency.

In addition to the displacement risks stemming from the confusing and incomplete non-payment
standards, there are still many grounds for eviction that are simply not covered by the current ordinance.
For example, a low-income and undocumented immigrant street vendor may not be able to provide the
formal documentation necessary to show a loss of income directly related to the pandemic, even though
the City has requested increased enforcement to shut down their business and they are unable to access
federal relief programs. Should this person be evicted right now? A worker who is fortunate enough to
still be employed may install desk and shelving for a work-from-home station that violates a lease term
concerning unapproved decorating or construction. Should this person be evicted right now?

The current eviction ordinance was an important first step, but it is time to eliminate the
confusion and close the gaps. Los Angeles renters need the simple yet comprehensive prohibition on
evictions proposed under CF 20-0404.

4
California Courts, Judicial Council News Release: Judicial Council Adopts New Rules to Lower Jail Population,
Suspend Evictions and Foreclosures. April 6, 2020, https://newsroom.courts.ca.gov/news/judicial-council-adopts-
new-rules-to-lower-jail-population-suspend-evictions-and-foreclosures.

2
 B. The City has the authority under its police power to enact a broad eviction
moratorium.

The City has the power to take greater action to protect tenants under both its police powers and
emergency powers. The California Constitution sets forth the City’s broad police powers by stating “[a]
county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and
regulations not in conflict with general laws.”5 Legislative enactments analyzed for validity under the
police power must be reasonably related to a “legitimate governmental purpose, and [courts must avoid]
confus[ing] reasonableness in this context with wisdom.”6 Ordinances enacted pursuant to the police
powers must be upheld unless there is a “complete absence of even a debatable rational basis” that the
ordinance serves as “a reasonable means of counteracting harms and dangers to the public health and
welfare emanating from a housing shortage.”7

While some might suggest that the power to regulate eviction is reserved to the state eviction
statutes, all cities and counties, pursuant to their police power, have the authority to create “substantive
limitations on otherwise available grounds for eviction,” provided such limitations are not procedural in
nature and “do not alter the Evidence Code burdens of proof.”8 Substantive regulation on the grounds for
eviction include limiting the causes of action available to landlords to use as grounds for evicting tenants
and have been consistently upheld over the past several decades.9 Courts have distinguished permissible
substantive limitations from impermissible procedural limitations outside the context of a public health
emergency. The Motion under File No. 20-0404 directs the City Attorney to prepare an ordinance that
would affect substantive limitations on the grounds of eviction, as authorized by the police power, and
procedural limitations on eviction, such as prohibiting the issuance of notices and filing of unlawful
detainer actions that the City’s emergency powers authorize in these dire circumstances.10 The Mayor has
already invoked his emergency authority to temporarily suspend no-fault evictions if occupants were “ill,
in isolation, or under quarantine,” and Ellis Act evictions of occupied rental units. The Mayor’s Public
Order included a ban on the issuance of eviction notices and the filing of unlawful detainers on the these
grounds.11

5
Cal. Const. at XI, section 7.
6
Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 159.
7
Id. at 161.
8
Rental Housing Assn. of Northern Alameda County v. City of Oakland (2009) 171 Cal. App. 4th 741, 755, 763,
citing Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 147-149. In Birkenfeld, the court held that the City of
Berkeley’s ordinance requiring landlords to obtain a certificate of eviction before filing an unlawful detainer was an
impermissible procedural barrier, calling the process full of “elaborate prerequisites.” Id. at 161. The court held that
state law governing unlawful detainer procedures “fully occupy the field of landlord’s possessory remedies,” and
therefore preempted the City’s requirement for a certificate of eviction.
9
In Roble Vista Associates v. Bacon, the court upheld a city ordinance that (1) required landlords to offer tenants
one-year leases at a fixed rental rate during the lease term and (2) provided an affirmative defense to tenants in
unlawful detainer actions if their landlords failed to do so. (2002) 97 Cal.App.4th 335, 337-38, 342. Similarly, in
Rental Housing Assn. of Northern Alameda County v. City of Oakland, the court upheld certain portions of a local
ordinance that required landlords seeking to recover their units to “act in good faith” and imposed other substantive
requirements to substantiate certain causes of action for an unlawful detainer action. (2009) 171 Cal.App.4th 741,
754. These provisions of the ordinance were not preempted by the state unlawful detainer statutes. Id. at 759, 764-
765.
10
Cal. Gov. Code § 8634.
11
See “Mayor Garcetti orders new restrictions on evictions, announces indefinite moratorium on water and power
shutoffs in fight against COVID-19,” City of Los Angeles, March 23, 2020, https://www.lamayor.org/mayor-
garcetti-orders-new-restrictions-evictions-announces-indefinite-moratorium-water-and-power.

3
 Furthermore, courts have upheld ordinances that have incidental procedural impacts. In San
Francisco Apartment Assn. v. City and County of San Francisco, the court held that unlawful detainer
statutes did not preempt a local ordinance that imposed a delay on evicting families and educators on no-
fault grounds.12 The court found that the ordinance imposed a “procedural impact, limiting the timing of
certain evictions.”13 The procedural impact was “necessary to ‘regulate the substantive grounds’” of no-
fault evictions in order to protect children from displacement during the school year.14 Furthermore, the
ordinance was not a procedural limitation on the grounds for eviction because it “[did] not require
landlords to provide written notice or to do any other affirmative act.”15 The court concluded that the
ordinance created a “permissible ‘limitation upon the landlord’s property rights under the police power,’
rather than an impermissible infringement on the landlord’s unlawful detainer remedy’” under state law.16
Here, a temporary eviction moratorium removing substantive bases for eviction clearly fits within the
category of substantive regulation reserved for the local jurisdiction to regulate.

The City has a significant governmental interest in ensuring housing security and stability and
preventing widespread homelessness that will result from evictions that are processed once the emergency
orders are lifted, which will create a secondary public health emergency in a city that already has the
worst unsheltered crisis and affordable housing crisis in the country. The temporary eviction moratorium
proposed under CF 20-0404 is unquestionably related to, and indeed necessary to achieve this important
purpose. Such action, taken during the course of a historic pandemic, is unquestionably a reasonable
exercise of the City’s police powers, which the courts will grant great deference to. Additionally, as set
forth below, the actions are neither preempted nor unconstitutional.

C. The City is authorized to enact an eviction moratorium by the California

Emergency Services Act.

During a declared state of emergency, the California Emergency Services Act (CESA) authorizes
the City Council to "promulgate orders and regulations necessary to provide for the protection of life and
property"17 which here includes remaining in existing homes pursuant to shelter in place orders by state
and local entities. On March 19, Governor Newsom issued Executive Order N-33-20, which authorized
and concurrently included an order from the State Public Health Officer, requiring “all individuals living
in the State of California to stay home or at their place of residence except as needed to maintain
continuity of operations.” The Governor’s subsequent Executive Order N-37-20 directly links the need to
minimize evictions in order to comply with the stay at home directive in the March 19 Order.18

On March 4, the Mayor declared a local state of emergency in the City, which has been approved
by the City Council.19 As such, the CESA authorizes the City Council to take action to enact orders
necessary to provide for the protection of life and property, which will unquestionably be furthered by an
eviction moratorium. The CESA requires that the governing body, in this case the City Council, to
review the ongoing need to continue the local emergency at least once every 60 days until it terminates

12
(2018) 20 Cal.App.5th 510, 513.
13
Id. at 510, 518.
14
Id. at 518.
15
Id.
16
Id. at 518-19, citing Birkenfeld, 17 Cal. 3d at 149.
17
Cal. Gov. Code § 8634.
18
Cal Exec. Order No. N-37-20 (March 27, 2020), available at: https://www.gov.ca.gov/wp-
content/uploads/2020/03/3.27.20-EO-N-37-20.pdf.
19
City of Los Angeles, Office of the Mayor. Declaration of Local Emergency, March 4, 2020. Accessible at:
http://clkrep.lacity.org/onlinedocs/2020/20-0291_reso_03-04-2020.pdf.

4
the emergency.20 The City Council should exercise its authority to take local measures authorized by
state law to effectuate the stay at home orders to ensure public safety.

D. A broad eviction moratorium is supported by the Governor’s Executive Orders

suspending any state law that could preempt the local effort, and is not otherwise
preempted by existing state law.

Although a city’s police power is broad, it cannot conflict with the general laws of the State of
California. A conflict exists between a local ordinance and state law if the ordinance “duplicates,
contradicts, or enters an area fully occupied by general law, either expressly or by legislative
implication.”21 However, when a city or county “…regulates in an area over which it traditionally has
exercised control ... California courts will presume, absent a clear indication of preemptive intent from the
Legislature, that such regulation is not preempted by state statute.”22

In enacting Executive Order N-28-20 on March 16, 2020, the Governor explicitly suspended
“[a]ny provision of state law that would preempt or otherwise restrict a local government’s exercise of its
police power to impose substantive limitations on residential or commercial evictions.”23 This Executive
Order provides explicit authority to enact a broad eviction moratorium. Moreover, the Governor’s
Business, Consumer Services and Housing Agency published guidance for city and county governments
that explicitly says: “Nor does the Executive Order prohibit a city or county from imposing an absolute
limitation on all evictions.”24

Consistent with this Order, the City has already adopted an ordinance that goes beyond the
provisions of the Governor’s order. Several other cities across California have likewise adopted local
ordinances that go further than the Governor’s order, including Oakland, which has adopted a complete
eviction moratorium. Even the California Apartment Association does not dispute the ability of a local
city to adopt an ordinance that goes further than the Governor’s order, plainly stating, “The Governor’s
Order does not preempt local eviction moratoria.”25

Beyond the clear legislative intent, there is also no conflict preemption. Under a conflict
preemption analysis, the question is whether it is possible for a person to follow both laws at the same
time. The Governor’s order is limited to non-payment of rent related to COVID-19. So expanding LA’s
ordinance would involve covering other non-nonpayment grounds for eviction and nonpayment eviction
that is not proven to be related to COVID-19. Since the Order doesn’t expressly regulate these, and there
is intent not to preempt the field, then these would be additional protections at the local level but
landlords and tenants could still follow both the Governor’s order and the new Los Angeles provisions, so
there is no conflict preemption.

While the Governor’s first Executive Order explicitly removes preemption concerns for the
limited types of evictions in the Order, the City may still use its full police powers to go farther than the

20
Cal. Gov. Code § 8630(c).
21
See Viacom Outdoor Inc. v. City of Arcata (2006) 140 Cal.App.4th 230, 236.
22
See San Francisco Apartment Assn. v. City and County of San Francisco (2018) 20 Cal.App.5th 510, 515..
23
Cal. Exec. Order No. N-28-20 (Mar. 16, 2020), available at:
https://www.gov.ca.gov/wpcontent/uploads/2020/03/3.16.20-Executive-Order.pdf.
24
State of California, Business Consumer Services and Housing Agency. Guidance and Frequently Asked Questions
on Residential and Commercial Eviction Limitations and Moratoriums During the COVID-19 Pandemic, pg. 6,
published April 7, 2020.
25
California Apartment Association Industry Insights, “Frequently Asked Questions: Governor Newsom’s
Executive Orders on Evictions During the COVID-19 Pandemic,” California Apartment Association, revised April
2020, available at https://caanet.org/kb/download/58804.kbdl.

5
EO for other types of evictions. Put another way, the silence on other types of evictions does not
implicitly mean the City is preempted from regulating them. The City is only preempted if there were to
be conflict with state law. The City can both comply with the Executive Order and go farther than the
executive Order so long as there isn’t a conflict. Because state law grants local jurisdictions the authority
to regulate the substantive grounds for eviction,26 no such conflict exists.

E. A broad eviction moratorium is not unconstitutional under the Takings Clause.

The proposed temporary eviction moratorium would not rise to the level of a “taking” under
longstanding case law. Both the United States Constitution and the California Constitution prohibit the
taking of private property for public use without just compensation.27 The Takings Clause of the
California Constitution is generally interpreted congruently with the Takings Clause of the Fifth
Amendment.28

The government’s regulation of private property will constitute a taking of such property only if it
is “so onerous that its effect is tantamount to a direct appropriation or ouster.”29 Such “regulatory takings”
will constitute “per se” takings requiring compensation only if they either (i) result in a permanent
physical invasion of property or (ii) deprive a property owner of all economically beneficial or productive
use of the property in question.30 Otherwise, government regulation that does not result in a “per se”
taking may still constitute a taking, but only if it is found to be “functionally equivalent” to a direct
appropriation or ouster under the “essentially ad hoc” fact-specific inquiry described in the Penn Central
case.31

Because the proposed measure would neither result in a permanent physical invasion of property
nor in a complete deprivation of economic use of the property in question, it should be analyzed under the
Penn Central standard. The Penn Central inquiry focuses on two primary factors: (i) the economic impact
of the regulation on the property’s owner and (ii) the investment-backed expectations of the owner. This
inquiry also takes into account the character of the government action – a taking is more likely to be
found when the regulation can be characterized as a “physical invasion by government” as opposed to “a
public program adjusting the benefits and burdens of economic life to promote the common good.”32 In
analyzing whether a taking has occurred, the court does not analyze whether the owner’s rights in one
particular segment of the property have been abrogated, but rather focuses on “the nature and extent of the
interference with rights in the parcel as a whole.”33

The threshold for a taking under the Penn Central analysis is high. In applying the Penn Central
factors, the Ninth Circuit Court of Appeals has observed that “diminution in property value because of
governmental regulation ranging from 75% to 92.5% does not constitute a taking” and that it is not aware

26
See Fisher v. City of Berkeley (1984) 37 Cal. 3d 644, 707 (holding that a city may regulate the substantive
grounds of eviction, even to the point of “effectively eliminat[ing]” a ground for eviction in state law.) See also
Birkenfeld v. City of Berkeley (1976) 17 Cal. 3d 129, 148-149.
27
U.S. Const., amend. 5, 14; Cal. Const., art. I, § 19(a).
28
San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 664.
29
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005).
30
Lucas v. S.C. Coastal Council 505 U.S. 1003, 1015-17 (1992). A third category, not applicable here, involves a
land-use exaction, where the government conditions the issuance of a development permit on a landowner’s
dedication of an easement on the property allowing for public use. Lingle at 546-548; See also Nollan v. California
Coastal Comm'n, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994).
31
Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978); Lingle at 538; Kavanau v. Santa Monica
Rent Control Bd., 16 Cal.4th 761, 774 (1997).
32
Penn Central at 124; Lingle at 538-39 (2005).
33
Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 327 (2002).

6
of any case in which a court has found a taking where diminution in value of the property in question was
less than 50%.34 Moreover, a loss of profits due to a restriction on the use of the property –
unaccompanied by a physical property restriction -- is generally viewed as a weak basis for a takings
claim.35 As the Supreme Court noted in Andrus v. Allard, “[G]overnment regulation -- by definition --
involves the adjustment of rights for the public good” and that although such adjustments often limit in
some way the economic exploitation of private property “[t]o require compensation in all such
circumstances would effectively compel the government to regulate by purchase.”36

A full eviction moratorium would not constitute a taking under a Penn Central analysis because
of its limited impact on the overall values of the affected properties, its time-limited nature, and its
similarity to existing measures. The eviction moratorium would simply extend the existing City of Los
Angeles renter protection ordinance banning the eviction of tenants for COVID-19-related nonpayment of
rent to include all tenants for the duration of the declared emergency plus 30 days. This temporary
eviction moratorium should not have any long-term economic impact on the value of rental properties and
would not defeat the investment-backed expectations of landlords, who are already subject to numerous
limitations on the right to evict. Moreover, the character of the government action is precisely that of the
“public program adjusting the burdens of economic life to promote the common good” that Penn Central
explicitly states is unlikely to support the finding of a taking.

F. A temporary eviction moratorium is not unconstitutional under the Contracts

Clause.

A temporary moratorium is also not an unconstitutional interference with existing contracts. The
Contracts Clause of the Constitution prohibits only “a substantial impairment of a contractual
relationship.”37 Even a substantial impairment may be upheld if the state has a “significant and legitimate
public purpose behind the regulation.”38 Courts also assess whether the adjustment of the parties’ rights is
reasonable and “appropriate to the public purpose” of the regulation but generally defer to state
legislatures in making those determinations.39 Since the end of the Lochner era, the Contract Clause has
not been “read as a serious impediment to state social and economic legislation affecting private
contracts.”40

In determining whether a regulation constitutes a substantial impairment, “whether the industry

the complaining party has entered has been regulated in the past” is an important consideration in
determining whether a law operates as a substantial impairment of a contractual relationship. Because
“the landlord-tenant relationship is, if nothing else, heavily regulated,” new laws regulating that
relationship are subject to less scrutiny.41 Landlords have come to expect that the state legislature and
local governments will enact laws that will affect their contractual relationship with tenants. In this case,
in response to the COVID-19 pandemic, many policies have been adopted – between the Mayor’s
Executive Orders, the City’s adopted existing tenant protection ordinances, the multiple executive orders

34
Colony Cove Props., LLC v. City of Carson, 888 F.3d 445, 451 (9th Cir. 2018).
35
Andrus v. Allard, 444 U.S. 51, 66 (1979).
36
Andrus at 65.
37
Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400, 411 (1983).
38
Id.; United States Trust Co. v. New Jersey, 431 U.S. 1 (1977) (holding that the elimination of unforeseen windfall
profits is a legitimate state interest).
39
Id. at 412.
40
Troy Ltd. v. Renna, 727 F.2d 287, 295 (3d Cir. 1984) (citing Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398
(1934) (holding two-year state moratorium on foreclosure of mortgages did not violate Contract Clause)).
41
Id. at 297-98 (holding law that “simply enlarge[d] the terms of a statutory tenancy” was not substantial
impairment of contractual relationship).

7
from the Governor, and Judicial Council Order – that have significantly changed the terms of the
contractual relationship landlords have with their tenants.

Additionally, emergency conditions giving rise to state regulation and the temporary nature of the
proposed regulation cautions against finding a substantial impairment. In Home Building & Loan
Association v. Blaisdell, the Supreme Court held that a two-year state moratorium on foreclosure of
mortgages during the Great Depression did not violate the Contract Clause.42

Finally, it is important to emphasize, the City has already affected existing lease agreements when
it enacted the most recent emergency eviction ordinance, but those actions did not rise to the level of a
Contracts Clause violation due to the extraordinary governmental interest involved. The proposal under
CF 20-0407 is no different. Expansion of the existing policy similarly does not raise Contract Clause
concerns, as the same underlying governmental interest would support the expansion.43

G. Several other jurisdictions have enacted significantly stronger measures than what
is currently in place for the city of Los Angeles.

Although Los Angeles has acted quickly, it has now fallen behind many other cities in terms of
the breadth and depth of its emergency eviction protections. Several cities and counties across the state of
California have already moved quickly and decisively to protect their residents by enacting the types of
strong provisions proposed under CF 20-0404. Some jurisdictions, like Santa Monica and San Mateo
County, have prohibited landlords from attempting to evict tenants by serving notices to vacate or
proceeding with the unlawful detainer process. In these jurisdictions, officials have proactively prohibited
actions to start unlawful detainer proceedings, instead of just providing a tenant a defense they can assert
in a court proceeding. Other jurisdictions, like Oakland, have provided a complete affirmative defense for
tenants who are served an unlawful detainer lawsuit, covering nearly all grounds for eviction, absent a
public health necessity.

H. Prejudicial assumptions about tenant behavior have no place in the discussion on

housing stability during a deadly global pandemic.

Any references to tenant behavior and activity are not relevant to the question of temporarily
preventing evictions. Evictions are never the only recourse against illegal behavior, and the theoretical
possibility of illegal behavior, for which other enforcement avenues remain open, is not a good reason to
risk countless people losing their home during a health emergency, or during the crucial economic
rebuilding period right after the health emergency ends. There is nothing in the proposed policy (CF 20-
0404) preventing the enforcement of other generally applicable laws, but the policy does offer what is
most needed right now - greater housing stability at a time when that has never been more important.

I. The City should ensure that there are penalties for violation of the eviction
moratorium.

A violation of the city’s eviction moratorium does not just put one household’s housing at risk. It
can have serious public health implications if households are forced out of their homes and are unable to
shelter in place. Therefore, the City should act to deter violations of the moratorium by:

42
290 U.S. 398, 447-48 (1934).
43
See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (finding that the Constitution permits restriction of
“liberty of contract” by governmental action where such restriction protects the community, health and safety, or
vulnerable groups.)

8
  Providing that any aggrieved party or the City may institute a civil proceeding for
injunctive relief and/or actual, special, statutory and/or punitive damages for violations of
the moratorium;
 Providing the court discretion to award a penalty between $1000 and up to $10,000 per
violation depending on the severity of a case (similar to the City of Santa Monica);
 Providing the court discretion to award actual damages and punitive damages;
 Adding a separate civil penalty of up to $5,000 for violations of the Anti-Tenant
Harassment Ordinance committed against elderly or disabled tenants (as provided by the
City of Santa Monica).
 Providing that the prevailing party shall be entitled to costs and reasonable attorneys’
fees;

To ensure meaningful compliance on the ground, violations of the moratorium, and co-occuring
harassment actions taken to avoid compliance with the current protections must be met with strong
enforcement measures.

II. The City Council should approve agenda item 38 (CF 20-0409) to clarify that unpaid rent
during the emergency period is not grounds for eviction later.

The economic impact of this crisis will reverberate well after the public health emergency ends.
Without additional protections for the hundreds of thousands of renters who are losing income as a result
of the precautions necessary to address the pandemic, we will see a devastating wave of eviction and
resulting homelessness at the end of the 12-month repayment period. The City can prevent this, and
protect public health, by prohibiting evictions based on nonpayment of rent due during the COVID-19
emergency, even after the declared emergency ends. Such an action would still permit landlords to collect
unpaid rent through traditional contract actions, such as seeking a judgment in small claims court – but
unpaid rent that became due during the emergency could not be the basis for an eviction.44

The City has the ability to prohibit such evictions under its well-established power to limit the
substantive grounds for eviction.45 Oakland’s eviction moratorium already prohibits evictions for
nonpayment of rent that became due during the COVID-19 emergency.46 Southgate and Maywood have
also adopted ordinance preventing unpaid rent during the emergency from being grounds for eviction.

The reality is that many tenants, especially low-income tenants, already struggled to pay rent
before the pandemic. Coming out of the pandemic, they will be faced with the double hit of months of
back rent and unstable or no employment. For tenants that endure this difficult time and successfully pay
their rent going forward once the emergency resolves, it would be patently unfair and serve no legitimate
public policy to allow their eviction based on back rent accumulated during the current safer-at-home
orders.

44
Bevill v. Zoura (1994) 27 Cal. App. 4th 694, 697 (court confirming that if a landlord waits too long to pursue
uncollected rent, “the landlord is limited to collecting such rent in an ordinary breach of contract action,” and not
through the unlawful detainer process.).
45
See Fisher v. City of Berkeley, 37 Cal. 3d 644, 707 (1984) (holding that a city may regulate the substantive
grounds of eviction, even to the point of “effectively eliminat[ing]” a ground for eviction in state law.) See also
Birkenfeld v. City of Berkeley, 17 Cal. 3d 129, 148-149 (1976).
46
City of Oakland Ord. No. 13589 available at
https://oakland.legistar.com/View.ashx?M=F&ID=8248264&GUID=D997F421-01DB-4B31-83DF-
63F972DE3A76.

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III. The City should pursue all available options under agenda item 37 (CF 20-0407) to secure a
rent freeze on all rental units during the emergency.

A. The City should consider whether it has emergency powers to freeze rents for all
rental units during the emergency.

The City has broad police powers and emergency powers pursuant to Government Code section
8634, as discussed above. Governor Newsom further elaborated on the scope of these powers through his
Executive Order N-28-20, issued on March 16, 2020, in which he found that “…because homelessness
can exacerbate vulnerability to COVID-19, California must take measures to preserve and increase
housing security for Californians to protect public health; and…local jurisdictions, based on their
particular needs, may therefore determine that additional measures to promote housing security and
stability are necessary to protect public health or to mitigate the economic impacts of COVID-19.”47 A
temporary rent freeze on non-RSO units is one such additional measure necessary to protect public health
and forestall homelessness. Moreover, it merely impacts the timing, not the ability of landlords to impose
rent increases. The delay in exercising the right to collect rent may be permissible in the context of an
international public health emergency, and we urge the City Council to direct the City Attorney to
consider this possibility.

B. The City should consider whether a temporary rent freeze conflicts with Costa
Hawkins.

Costa-Hawkins generally preserves the rights of landlords to set tenants’ initial residential rental
rates.48 Under normal circumstances, Costa-Hawkins also permits landlords to increase rents on certain
types of units, including units constructed after 1995, subdivided interests in subdivisions, single family
homes, and certain condominiums.49

There are several arguments that the City should seriously consider in order to support a
temporary rent freeze on non-RSO units under Costa Hawkins. A temporary rent freeze would not
prohibit landlords from setting initial rental rates, and landlords eligible to impose unregulated rent
increases would be able to do so after the emergency has been resolved. Therefore, a temporary rent
freeze is arguably not the “strictest type of rent control” that Costa-Hawkins aimed to prevent. In addition,
the City should consider whether a temporary rent freeze would prevent evictions for nonpayment of rent,
and might therefore be permissible under Costa-Hawkins’ savings clauses, which provides that Costa-
Hawkins does not interfere with the City’s right to regulate the grounds of eviction. 50 Tenants who could

47
Cal. Exec. Order No. N-28-20 (Mar. 16, 2020), available at:
https://www.gov.ca.gov/wpcontent/uploads/2020/03/3.16.20-Executive-Order.pdf.
48
A court is disinclined to find field preemption of “land use regulations of local concern” beyond express
declaration of the Legislature to occupy the field. City and County of San Francisco v. Post (2018) 22 Cal.App.5th
121, 137.
49
Cal. Const. art. XI, Sec. 7.
50
Civil Code section 1954.53(e); Civil Code Section 1954.52(c). See Action Apartment Assn., Inc. v. City of Santa
Monica (2007) 41 Cal.4th 1232, 1245 deeming Civil Code Section 1954.52(e) a savings clause. See Mak v. City of
Berkeley Rent Stabilization Board (2015) 240 Cal.App.4th 60, 69 and DeZerega v. Meggs (2000) 83 Cal.App.4th 28,
40, as modified on denial of reh'g (Sept. 14, 2000), which refer to Civil Code Section 1954.53(e) and Civil Code
Section 1954.52(c) interchangeably. The court in DeZerega provided Costa-Hawkins “explicitly disclaims any effect
on the power of local governments to regulate evictions,” citing Civ. Code Section 1954.52(c); Bullard v. San
Francisco Residential Rent Stabilization Bd. (2003) 106 Cal.App.4th 488.

10
rely on their current rental rate remaining constant during this crisis would be better able to afford to
remain in their homes with a temporary rent freeze. Because Costa Hawkins enacted vacancy decontrol,
landlords already had an incentive to engage in pretextual evictions. 51 Currently, landlords owning non-
RSO units have an even more dangerous incentive to evict tenants to make up for lost income during the
epidemic and impose prohibitive rent increases on current tenants.

These questions are important, given the magnitude of these crisis. The City should be solution-
oriented and do everything in its power to forestall this wave of evictions by enacting a temporary rent
freeze.

C. Neither a temporary rent freeze nor a full rental forgiveness order violates the
Takings Clause.

As described more fully in Section I.E., the government’s regulation of property in this context
will constitute a taking of such property only if it is found to be “functionally equivalent” to a direct
appropriation or ouster under the “essentially ad hoc” fact-specific inquiry described in the Penn Central
case.52 A temporary rent freeze ordinance should not have any long-term economic impact on the values
of the impacted properties, since any such impact would evaporate the moment the freeze was lifted.
Moreover, a temporary restriction on increasing rents is sufficiently similar to (and in many cases may
simply overlap with) the City’s Rent Stabilization Ordinance that it would not defeat the investment-
backed expectations of affected property owners. It is also the type of “public program” that a Penn
Central analysis would be unlikely to deem a taking.

Finally, the state and federal rent forgiveness programs that the proposed resolutions support
would also not rise to the level of a taking because of their limited economic impact when compared to
the overall value of the properties in question. Although under such a program landlords would not be
entitled to collect rent for the duration of the emergency, they would still be able to borrow against their
properties, sell their properties, improve them, and continue to benefit from their appreciation in value.
Any temporary reduction in value due to such a rent forgiveness program would fall well short of the
significant percentages required for the finding of a taking under longstanding case law. Finally, although
this specific type of rent forgiveness program may not have been anticipated by the affected property
owners, the landlord-tenant relationship is heavily regulated under local and state law and a temporary
program limiting a landlord’s ability to collect rent during a public health crisis that requires people to
stay in their homes cannot be said to be outside the realm of possibility of anticipated regulation.

D. If the City Council does not act, the Mayor should use his emergency authority to
impose a rent freeze.

Given the unprecedented emergency, the City’s broad emergency powers, and the temporary
nature of a rent freeze, the City Council should do everything in its power to expand a rent freeze to non-
RSO units. To the extent that Mayoral action is needed, the City Council should indicate its support for
such action with an ordinance or resolution urging the Mayor to expand a temporary rent freeze. To the
extent state law remains a barrier, the Council should urge the Governor to suspend any laws preempting
a rent freeze on non-RSO units. But we urge the City Council to pursue local action on a non-RSO rent
freeze to the fullest extent possible, considering all the above analysis.

***

51
Bullard v. San Francisco Residential Rent Stabilization Bd. (2003) 106 Cal.App.4th 488, 492.
52
Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978).

11
 As set forth above, the City clearly has the power to enact more meaningful protections for
tenants during this crisis – including a broader temporary moratorium, to clarify that unpaid rent cannot
be the future basis for eviction, and to enact a broad temporary rent freeze. We are in a state of
emergency, and the law permits these temporary actions to be taken to safeguard all residents of the City.
Your actions now will literally save lives in this City, and allow people to stay safe at home, as intended.
We urge you to act now to protect your residents.

Sincerely,

Doug Smith, Public Counsel

Craig Castellanet, Public Interest Law Project
Dianne Prado, Housing Equality & Advocacy Resource Team (HEART)
Greg Spiegel and Tai Glenn, Inner City Law Project
Elena Popp, Eviction Defense Network

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