Judge: Curtis A. Kin, Case: 23STCP03519, Date: 2024-05-30 Tentative Ruling

Case Number: 23STCP03519    Hearing Date: May 30, 2024    Dept: 86

        Respondents City of Los Angeles and City of Los Angeles City Council demur to the Verified First Amended Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief (“FAP”).

I.                    Factual Allegations

            On July 5, 2023, respondent City of Los Angeles City Council enacted Los Angeles Administrative Code (“LACC”) § 8.33, which empowers the Mayor to declare the existence of a local housing and/or homelessness emergency. (FAP Ex. 11; LAAC § 8.33(a).)[1] Upon such declaration, the Mayor is empowered to “[p]romulgate, issue and enforce rules, regulations, orders and directives which the Mayor considers necessary to address the emergency,” “[c]ommandeer property deemed necessary to meet interim and temporary housing needs and bind the City for the fair value thereof,” “[r]equire emergency service of any City officer or employee and requisition necessary personnel or material of any City department or agency,” “[o]rder any action relative to the procurement of construction contracts, service provider contracts, supplies, and equipment for homelessness facilities to safeguard life, health or property caused by the emergency,” and “[s]uspend competitive bidding restrictions enumerated in Charter Section 371(e)(6) and Los Angeles Administrative Code Sections 10.15 and 10.17 for contracts entered into by City departments and offices in response to the emergency and mitigation efforts related to the emergency.” (LAAC § 8.33(d).)

On July 7, 2023, pursuant to LAAC § 8.33, Karen Bass, Mayor of respondent City of Los Angeles, declared a local housing and homelessness emergency. (FAP Ex. 12.)

          Petitioner Fix the City, Inc.’s “mission is to promote public safety, support adequate infrastructure, and to hold City government accountable, especially with

regard to land use issues.” (FAP ¶ 12.) Petitioner contends that the Mayor’s declaration is ineffective and void because it was not ratified in accordance with the timing requirements for ratification set forth in the California Emergency Services Act (“CESA”), specifically Government Code § 8630. (FAP ¶ 61.) Petitioner also alleges that the declaration is void because, as purportedly required by LAAC § 8.33, there was no resolution ratifying the existence of a local housing and/or homelessness emergency and the declaration was not renewed within 90 days of its issuance. (FAP ¶¶ 62-67.) Petitioner thus seeks a writ of mandate directing respondents to “void the 8.33 Declaration [of local housing and homelessness emergency] and vacate all contracts, approvals, and building entitlements based thereon.” (FAP ¶ 67; Prayer for Relief ¶ 1.)

II.      Procedural History

          On September 25, 2023, petitioner filed a Verified Petition for Writ of Mandamus, Petition for Writ of Prohibition, and Complaint for Declaratory and Injunctive Relief. On October 16, 2023, pursuant to petitioner’s request, respondent Karen Bass, Mayor of the City of Los Angeles was dismissed without prejudice.

            On January 2, 2024, petitioner filed the operative Verified First Amended Petition for Writ of Mandamus and Complaint for Declaratory and Injunctive Relief. On February 16, 2024, respondents filed the instant demurrer to the First Amended Petition. On March 15, 2024, petitioner filed an opposition. On March 21, 2024, respondents filed a reply.

            On April 25, 2024, the Court conducted a hearing on the instant demurrer and continued the hearing to May 30, 2024 to allow for supplemental briefing concerning the second cause of action for declaratory relief. On April 26, 2024, the Court issued a minute order inviting the parties to file supplemental briefs concerning whether the legislative history for the California Emergency Services Act (“CESA”) provides any guidance as to whether the State Legislature intended CESA to apply to charter cities and/or the City of Los Angeles in whole or in part. On May 17, 2024, the parties filed supplemental briefs.

III.     Analysis

A.       Evidentiary Matters

Respondents’ request to take judicial notice of Exhibits A through E are GRANTED, pursuant to Evidence Code § 452(b) (regulations and legislative enactments). Respondents’ request to take judicial notice of Exhibits F through M and O are GRANTED, pursuant to Evidence Code § 452(c) (official legislative acts). (See Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 599 [allowing for judicial notice of records reflecting city’s official acts, including resolutions, minutes, and agendas].) Respondents’ request to take judicial notice of Exhibit N is GRANTED. (United Teachers of Los Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504, 528 [judicial notice of legislative history].)

            Petitioner’s request to take judicial notice of Exhibit 1 is GRANTED. (Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 186 [judicial notice of city attorney opinion].) Petitioner’s request to take judicial notice of Exhibit 2 is GRANTED, pursuant to Evidence Code § 452(c).

Petitioner’s supplemental request to take judicial notice of Exhibit 1 is GRANTED. (United Teachers, 54 Cal.4th at 528 [judicial notice of legislative history].) Petitioner’s supplemental request to take judicial notice of Exhibits 2 and 4 are GRANTED, pursuant to Evidence Code § 452(c). Petitioner’s supplemental request to take judicial notice of Exhibits 3 and 9-13 are GRANTED, pursuant to Evidence Code § 452(b). Petitioner’s supplemental request to take judicial notice of Exhibits 5, 7, and 8 are GRANTED, but only for the existence of the documents, not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.) Petitioner’s supplemental request to take judicial notice of Exhibit 6 is GRANTED, pursuant to Evidence Code § 452(d).

B.        First Cause of Action – Petition for Writ of Mandamus

1.            Standing

As a preliminary matter, petitioner sufficiently alleges standing. “[W]here the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced.” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439, internal citations omitted.) Petitioner seeks to enforce laws governing land use, as implicated by LAAC § 8.33.

2.            Whether Government Code Section 8630 Preempts LAAC § 8.33

Petitioner contends that LAAC § 8.33 is preempted by CESA, specifically Government Code § 8630’s provision that a declaration of local emergency shall not remain in effect for a period in excess of seven days unless it has been ratified by the governing body.  (FAP ¶ 61.)  If that is the case, as alleged by petitioner, the declaration issued by Mayor Bass pursuant to LAAC § 8.33 is “ineffective and void” because it was not ratified within seven days in accordance with Section 8630.  (FAP ¶ 61.)

“[A] court asked to resolve a putative conflict between a state statute and a charter city measure initially must satisfy itself that the case presents an actual conflict between the two.” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 16 [Cal Fed Savings].) Thus, in determining whether LAAC § 8.33 is preempted by CESA, the Court must first determine whether there is even a conflict between the two. Government Code § 8630 states, in full (emphasis added):

(a) A local emergency may be proclaimed only by the governing body of a city, county, or city and county, or by an official designated by ordinance adopted by that governing body.

(b) Whenever a local emergency is proclaimed by an official designated by ordinance, the local emergency shall not remain in effect for a period in excess of seven days unless it has been ratified by the governing body.

(c) The governing body shall review the need for continuing the local emergency at least once every 60 days until the governing body terminates the local emergency.

(d) The governing body shall proclaim the termination of the local emergency at the earliest possible date that conditions warrant.

Los Angeles is a charter city. (FAP ¶ 16; RJN Ex. A [Los Angeles City Charter [“Charter”], art. I, § 100, et seq.].) This accordingly begs the question whether reference to a “city” in Government Code § 8630 means that the statute also applies to charter cities. If Government Code § 8630 governs charter cities, which would include respondent Los Angeles, the Court must then determine whether LAAC § 8.33 is preempted by Government Code § 8630 using the four-step inquiry set forth in Cal Fed Savings to determine whether the statute reflects a statewide concern (for which preemption applies) or a municipal affair (for which preemption does not). But, if Government Code § 8630 does not govern charter cities, then no actual conflict is presented, and no analysis of whether the statute implicates a “municipal affair” or a “statewide concern” is required.  (Cal Fed Savings, 54 Cal.3d at 16.)

            “[T]he Supreme Court and Courts of Appeal have often demanded a clearer indication than the use of a general term, be it ‘a political subdivision’ or ‘a city,’ before concluding a statute is intended to apply to charter cities.” (City of Redondo Beach v. Padilla (2020) 46 Cal.App.5th 902, 913 [Padilla].) “City” is not defined in the CESA. (See Gov. Code §§ 8555-8562.) By contrast, as recounted by the Court of Appeal in Padilla, the laws at issue in other cases in which the courts found such state laws applicable to charter cities expressly referred to charter cities or defined “city” to include charter cities or “any city.”[2] (Padilla, 46 Cal.App.5th at 913 [citing cases].) The Padilla Court noted that “city,” without more, is a term with “inherent ambiguity.” (Id. at 917.)

            In Padilla, the Court of Appeal affirmed a writ of mandate barring the Secretary of State from enforcing the California Voter Participation Rights Act against a charter city. (Padilla, 46 Cal.App.5th at 906.) The VPRA provided that a “political subdivision,” defined to include a “city,” shall not hold an election other than on the same date as a statewide election if holding an election on a different date resulted in a significant decrease in voter turnout, as defined in the statute. (Id. at 906-07.) Based on the legislative history of the VPRA and the authority conferred on charter cities by the California Constitution to set the timing of their elections, the Court of Appeal declined to infer an intent by the Legislature to apply the VPRA to charter cities. (Id. at 914-18.)

            Similarly, the Court here declines to find that the CESA evidences a clear intention to apply to charter cities. The procedures for enacting municipal ordinances are a municipal affair. (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 47; Adler v. City Council of City of Culver City (1960) 184 Cal.App.2d 763, 776 [“mode and manner of passing ordinances is a municipal affair”].) With respect to that municipal affair, LAAC § 8.33(e) sets forth how and when a declaration of a local housing and/or homelessness emergency is ratified, rescinded, and renewed. Given that LAAC § 8.33(e) contains its own procedures for declaring an emergency, this Court must demand a “clearer indication” that the State meant to supplant those procedures with its own when using the inherently ambiguous term “city” without any additional definition, explanation, or modifier.  In fact, the Legislature demonstrated it could send a clearer indication of when a provision of CESA concerns charter cities in Government Code § 8635, which explicitly empowers charter cities to amend their charters for the preservation and continuation of its government in a state of war emergency.  (See Gov. Code § 8635.) That the Legislature did not explicitly do so with respect to the procedures set forth in Government Code § 8630 provides a more clear indication it did not intend for those provisions to apply to charter cities.  (Gikas v. Zolin (1993) 6 Cal.4th 841, 852 [“Expressio unius est exclusion alterius.  The expression of some things in a statute necessarily means the exclusion of other things not expressed”].)

Further, insofar as the text of CESA is not itself sufficient to convey the Legislature’s intent, on February 7, 2022, in Senate Bill 933, the Legislature sought to amend CESA to add Section 8662.6 to the Government Code, which would have stated: “The Legislature finds and declares that safeguarding the liberties of the residents of this state during a state of emergency or local emergency is a matter of statewide concern and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this article applies to all 33 cities, including charter cities.” (Resp. RJN Ex. 5.) If CESA already included charter cities and the Legislature believed it to be so, this provision of Senate Bill 933 would have been unnecessary. Petitioner’s argument that Senate Bill 933 failed is beside the point. It is the fact that Senate Bill 933 was proposed at all which demonstrates a general reference to “city” in CESA does not include charter cities, and this Court certainly may consider the import of that fact when interpreting CESA’s reach as to charter cities. (See Padilla, 46 Cal.App.5th at 915-16, discussing Ector v. City of Torrance (1973) 10 Cal.3d 129, 134.)

            In supplemental briefing, petitioner presents four arguments: (1) the definitions in CESA encompass charter cities; (2) the legislative history of CESA shows an intent to establish CESA as an act of statewide concern; (3) the City has previously interpreted CESA to supersede local emergency declaration; and (4) the City is judicially estopped from arguing that CESA does not apply to the local housing and homeless emergency declared in this case.

            The first, third, and fourth supplemental arguments have nothing to do with the legislative history of CESA, which was the limited issue for which the Court requested supplemental briefing as to the interpretation of CESA.  (4/26/24 Minute Order.) Indeed, the Court notes that, during the initial hearing, petitioner asked the Court to allow supplemental briefing concerning CESA’s legislative history, which the Court ultimately did allow. The Court, however, did not allow for additional arguments concerning the interpretation of CESA. Further, while one-and-a-half line spacing is allowed by Rule of Court 2.108(1), petitioner abused the rule to fit arguments exceeding the Court’s order within the five pages allowed by the Court.  Notwithstanding such an unbecoming approach to advocacy, the Court addresses the uninvited, supplemental arguments, which the Court finds to be without merit.

With respect to the first supplemental argument, petitioner argues that Government Code § 8550 declares that an intent of CESA was to “confer upon the Governor and upon the chief executives and governing bodies of political subdivisions of this state the emergency powers provided herein.” (Gov. Code § 8550(a).) Government Code § 8557 defines “political subdivision” to include “any city,” which petitioner contends includes charter cities. (Gov. Code § 8557(b); see Marquez v. City of Long Beach (2019) 32 Cal.App.5th 562, 569 [finding use of “any city” in Labor Code wage provision included charter cities].) However, Government Code § 8630, the application of which is at issue here, does not use the term “political subdivision” or “any city.” Rather, Government Code § 8630 states that the governing body of “a city” may proclaim a local emergency. (Gov. Code § 8630(a).) For the reasons stated above, the Court finds that reference to “a city” does not include charter cities, as discussed and held in Padilla.

            With respect to the second supplemental argument, petitioner presents the analysis of the bill that repealed the California Disaster Act and enacted CESA. The analysis stated: “This bill is of importance to city and county governments as well as to the State Government, since many of its provisions are concerned with emergency preparedness responsibilities of local government.” (Pet. Supp. RJN Ex. 1 at 3.)  Petitioner thus argues that CESA was established as a “an act of statewide concern” applicable to charter cities. While the language of the bill analysis may be helpful in the determination of whether CESA implicates a matter of statewide concern, it does little to show that Government Code § 8630 applies to charter cities.  Indeed, the analysis of whether CESA—or, more to the point, Government Code § 8630—implicates a “municipal affair” or “statewide concern” and impinges on the rights of charter cities only occurs if Government Code § 8630 applies to charter cities, which, as discussed above, is not the case. (Cal Fed Savings, 54 Cal.3d at 16.) In arguing that the bill analysis would not suggest CESA implicates a statewide concern if charter cities were not subject to CESA, petitioner ignores the possibility that some, but not all, provisions of CESA may apply to charter cities.  As noted above, for example, Government Code § 8635 concerns charter cities and explicitly references them, whereas § 8630 does not.

            Petitioner also cites an Attorney General opinion to support its assertion that implementation of CESA is a matter of statewide concern. (Pet. Supp. RJN Ex. 2 at 8-10.) The opinion addressed whether a local emergency declared by a county applies to a city therein. Similar to the Attorney General opinion found to be unpersuasive in Padilla, the opinion did not in any way address the issue at hand, namely, whether the reference to “city” in Government Code § 8630 includes “charter city.” (See Padilla, 46 Cal.App.5th at 917 [noting Attorney General relied on “plain meaning” of “city” and “political subdivision” to render opinion without recognizing or analyzing “inherent ambiguity” in those terms].) Petitioner’s reliance on the Attorney General opinion is therefore unconvincing.

            With respect to the third and fourth arguments, petitioner relies on the City’s past interpretations of Government Code § 8630, including in a memorandum dated November 13, 2015 and a 2023 Base Emergency Operations Plan (“EOP”). (Pet. RJN Ex. 1 at 2 [“Government Code Section 8630 confers upon the City the ability to declare a local emergency….”]; Pet. Supp. RJN Ex. 3 at 108 [“While mayoral declaration of emergency may loosen restrictions on requesting processes, State law supersedes local emergency declaration.”], Ex. 5 at 8 [City’s argument in 2020 opposition to ex parte application that power to declare emergency derived from CESA], Ex. 13 at 3 [2017 City Emergency Proclamation stating that City shall review need to continue emergency at least every 30 days pursuant to Gov. Code § 8630(c)].) Such reliance is unavailing. While consistent administrative construction is given great weight, statutory interpretation is ultimately a legal question. (People v. Harrison (2013) 57 Cal.4th 1211, 1225.) Even if the 2015 memorandum, 2017 Emergency Proclamation, 2020 opposition to an ex parte application, and 2023 EOP support the contention that the City has relied upon Government Code § 8630 to declare an emergency, the Court is nevertheless bound by Padilla and its holding that a clearer indication than use of the term “city” is required before a state statute is applied to charter cities. (Padilla, 46 Cal.App.5th at 913.) Put simply, binding case law must control over the City’s prior interpretation of the statute.

With respect to the 2020 opposition to an ex parte application, petitioner also argues that the City is judicially estopped from arguing that Government Code § 8630 is inapplicable to its emergency declarations. In Turner’s Operations, Inc. v. Garcetti, LASC Case No. 20STCP01258, the City cited CESA as the source of the Mayor’s emergency powers in opposing the ex parte application (Pet. Supp. RJN Ex. 5 at 8), but petitioner fails to show that the court in Turner’s adopted the City’s position as true.  That is fatal to petitioner’s claim for judicial estoppel, because application of judicial estoppel requires that “the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true).” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) The portion of the ruling in Turner’s highlighted by petitioner does not mention Government Code § 8630. (Pet. Supp. RJN Ex. 6 at 3.) Nor does the ruling discuss whether Government Code § 8630 applies to charter cities.

            For the foregoing reasons, the Court finds that Government Code § 8630 does not apply to charter cities, including respondent City of Los Angeles. Accordingly, the question of whether the Mayor’s declaration was timely ratified and renewed is governed by LAAC § 8.33.

3.            Whether 8.33 Declaration Was Timely Ratified and Renewed Pursuant to LAAC § 8.33

It is undisputed that Mayor Bass issued a Declaration of Local Housing and Homelessness Emergency on July 7, 2023. (FAP ¶ 61 & Ex. 12.) Petitioner alleges the declaration was rendered void because the City Council was not initially presented with a resolution to ratify it per the provisions of LAAC § 8.33(e). (FAP ¶ 62.) Petitioner further alleges that, under LAAC § 8.33(e), the declaration expired on October 5, 2023 (i.e., 90 days from the date of the declaration) because the City Council did not renew it by majority vote by that date. (FAP ¶ 64.)  LAAC § 8.33(e) states:

Whenever the Mayor declares a local housing and/or homelessness emergency, the Chief Legislative Analyst’s Office shall prepare, with the assistance of the City Attorney, a resolution ratifying the existence of a local housing and/or homelessness emergency. Such resolution shall be submitted by the Mayor to the City Clerk for presentation to the City Council. Within 30 days from the date of the original declaration by the Mayor, the City Council may consider the resolution and rescind it by majority vote. Thereafter, the declaration shall expire unless the City Council renews it by a majority vote every 90 calendar days.

Under LAAC § 8.33(e), once the Mayor declared the emergency on July 7, 2023, the City Council had 30 days, i.e., until August 6, 2023, to consider a resolution ratifying the existence of the emergency and rescind it by majority vote. LAAC § 8.33(e) further provides that, after the expiration of the 30 days, the Mayor’s declaration would expire unless the City Council renewed it within 90 days thereafter, i.e., by November 4, 2023. The City Council timely renewed the declaration on October 31, 2023 and again on January 23, 2024. (FAP ¶ 65; Resp. RJN Exs. M, O.)

            Petitioner alleges that a resolution to ratify the existence of the emergency was never presented to the City Council. (FAP ¶ 62.) Respondents do not appear to dispute this allegation (Reply at 10:1-2), and, in any event, the Court takes that allegation to be true on demurrer. However, the fact that a resolution was not prepared for, presented to, and thereafter voted on by the City Council pursuant to one provision of LAAC § 8.33(e) does not invalidate the separate provision of LAAC § 8.33(e) that allows for the City Council to renew the declaration to avoid expiration during the 90-day period thereafter.  The former provision gives the City Council the option to rescind the declaration of emergency within the first 30 days.  It operates independently of the latter provision that otherwise provides for expiration or renewal of the declaration.  It is hard to see logically how the Mayor’s declaration should be deemed void simply because the City Council did not exercise its option to rescind it within the first 30 days.  Indeed, it is highly illogical to conclude that not voting to rescind the declaration should result in the declaration being deemed invalid or void; rather, the opposite must be true—that not voting to rescind means the declaration remains in effect.[3]

             As for petitioner’s contention that the declaration expired 90 days after the Mayor issued her declaration, that argument misreads the expiration and renewal provision of LAAC § 8.33(e).  Immediately following the provision that allows the City Council 30 days from date of the declaration to rescind it, LAAC § 8.33(e) states “[t]herafter, the declaration shall expire” in 90 days unless renewed by the City Council.  “Thereafter” logically refers to after the 30 days referenced in the preceding sentence.  It does not, as argued by petitioner, awkwardly refer to when the Mayor makes the emergency declaration, which is raised three sentences earlier in LAAC § 8.33(e) and separated by the 30 days for rescission provision.  Thus, in accordance with the plain language of LAAC § 8.33(e), the 90-days expiration period began after the 30-day period for rescission.[4]  The City Council has twice timely renewed the declaration in accordance with the provisions of LAAC § 8.33(e).

            For the foregoing reasons, the Court finds that petitioner has failed to set forth a basis upon which a writ of mandate would issue.  Accordingly, the demurrer to the first cause of action is SUSTAINED.

C.           Second Cause of Action – Declaratory Relief

A general demurrer to a cause of action for declaratory relief must be overruled so long as an actual controversy is alleged; the pleader need not establish any entitlement to a favorable judgment. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606.)

Petitioner alleges that LAAC § 8.33 violates CESA. (FAP ¶¶ 70-72.) For the reasons stated above, there is no conflict between CESA and LAAC § 8.33, which respondent enacted as a charter city.

Petitioner also alleges that LAAC § 8.33 violates Article 1, Section 19 of the California Constitution and the Eminent Domain Law, Code of Civil Procedure §§ 1230.010, et seq., “by granting the Mayor the power to commandeer property and to set the value of the taking.” (FAP ¶ 73.)  What LAAC § 8.33(d)(ii) actually states is that the Mayor may “[c]ommandeer property deemed necessary to meet interim and temporary housing needs and bind the City for the fair value thereof.”  Article I, Section 19(a) of the California Constitution allows for eminent domain and the payment of just compensation therefor.  LAAC § 8.33(d)(ii) does not authorize the Mayor to “set the value of the taking,” but instead is fully consistent with our Constitution by allowing the Mayor to seize property by binding the City to pay “fair value,” i.e., just compensation for any such property seized.

Petitioner also alleges that LAAC § 8.33 violates Public Contract Code § 20162 because it empowers the Mayor to suspend competitive bidding and allow sole-source contracting. (FAP ¶ 74.) However, “state general law bidding procedures do not bind chartered cities where the subject matter of the bid constitutes a municipal affair.” (R & A Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1191.) “[T]he manner in which a city is empowered to form a contract is generally a ‘municipal affair’ which can be controlled by the terms of its charter.” (First Street Plaza Partners v. City of Los Angeles (1998) 65 Cal.App.4th 650, 661.) “[I]f a city charter specifies the manner in which that city may enter into a contract, the terms of the charter control over otherwise applicable state law.” (Ibid.) Charter Section 371(a) governs the formation of contracts and competitive bidding. (Resp. Ex. C.) Accordingly, the terms of the Charter control over state law. Petitioner does not sufficiently allege how LAAC § 8.33 violates Public Contract Code § 20162.

Petitioner also alleges that LAAC § 8.33 violates LAAC § 8.22 because LAAC § 8.33 allows for a “local emergency” to be declared for chronic conditions instead of for “sudden or unexpected” occurrences, as is purportedly required under LAAC § 8.22. (FAP ¶¶ 75, 78-80.) LAAC § 8.22 defines “local emergency” to mean “any occurrence which by reason of its magnitude is or is likely to become beyond the control of the normal services, personnel, equipment and facilities of the regularly constituted branches and departments of the City government.” LAAC § 8.33(a) defines “Local Housing and/or Homelessness Emergency” as “a local emergency due to the existence of a critical shortage of local affordable housing and/or an emergency on homelessness as further defined in this section.”

Although LAAC § 8.33(a) uses the term “local emergency,” Section 8.33(a) states that it “shall not be subject to the other provisions of Article 3, Chapter 3, Division 8 of the Los Angeles Administrative Code.” Contained within Article 3, Chapter 3, Division 8 of the LAAC is Section 8.27, which states that the Mayor is empowered “to declare the existence of a local emergency or disaster when he finds that any of the circumstances described in Section 8.22 hereof exist.” Thus, even though Section 8.22 is contained in Chapter 2, Article 2 of Division 8 of the LACC, it is incorporated by reference in Section 8.27, which is contained in Article 3, Chapter 3 of Division 8 of the LACC. Accordingly, Section 8.33(a)’s statement that it is not subject to the provisions of Article 3, Chapter 3, Division 8 means that it is not subject to Section 8.22’s definition of “local emergency,” because Section 8.22 is incorporated by reference into Section 8.27, which is found in Article 3, Chapter 3, Division 8.

            Section 8.33 sets forth the conditions separate and apart of Section 8.22 under which a “Local Housing and/or Homelessness Emergency” can be declared, specifically when the Mayor finds that: (1) the City’s “housing supply is projected to be at least 40 percent below its annual housing production goals as established in the Housing Element”; and/or (2) homelessness has reached a crisis because either (a) the “unhoused population in the City is greater than two times the total number of interim beds as established in the annual Homeless Inventory Count” or (b) there is a “citywide increase by more than 20 percent in a single year as reported in the annual Point-in-Time Count.” (LACC § 8.33(b).) Petitioner admits that the criteria set forth in Section 8.33 were satisfied when Section 8.33 was passed. (FAP at ¶ 39 and p. 13, fn. 2.) Accordingly, even if the “Local Housing and/or Homelessness Emergency” does not constitute an occurrence under Section 8.22, petitioner presents no allegation indicating that the declaration of a “Local Housing and/or Homelessness Emergency” violates Section 8.33 or any other provision of the LAAC.

            Petitioner having failed to allege the existence of an actual controversy, the demurrer to the second cause of action is SUSTAINED.

IV.     Conclusion

The demurrer is SUSTAINED in its entirety.  As petitioner has not indicated how it might reasonably cure any of the defects discussed herein, there is no basis to grant any leave to amend.