Judge James C. Chalfant, Case 22STCP02589 2022-12-15 Tentative Ruling

Petitioners Michael and Linda Perry (collectively, the “Perrys”) seek a writ of mandate compelling Respondent City of Los Angeles (“City”) to set aside the decision that their property at 2614 Pacific Avenue, Venice, California (“Property”) is covered by the City’s Rent Stabilization Ordinance (“RSO”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Perrys commenced this action on July 12, 2022, alleging causes of action for (1) traditional or administrative mandamus, and (2) declaratory and injunctive relief. The verified Petition alleges in pertinent part as follows.

The Perrys are a married couple who own the Property in fee simple. The house on the Property was built with two floors of livable space and a four-car garage. In August 1978, the City granted the house a certificate of occupancy (“COO”) as a single-family residence, which entitled it to be exempt from the RSO.

In 1991, the then-owner of the Property added a third floor and converted it to a legal duplex. The City issued a new COO for the Property as a duplex. The City never warned any owner of the Property that the conversion to a duplex caused the Property to be covered by the RSO.

The Perrys purchased the Property in 1993 and have used the house as a single-family residence for the last 23 years. They have never had any intention of renting to a long-term tenant. At most, their now-adult daughters and their future families will visit and stay for short periods, something that cannot occur if a long-term tenant is on the Property.

In 2018, the Perrys decided to register the Property with the Los Angeles Planning Department (“Planning”) to legally rent the first floor on a short-term basis. The short-term rental registration (“Registration”) for the Property became valid in October 2019. With the City’s approval, the Perrys renewed the Registration in 2020 and 2021.

The City’s website has always stated that the RSO does not cover the Property. Because of this fact, the Perrys never changed the designation of the Property from duplex to single-family. After SB 330 passed in January 2020, the City and Coastal Commission will not allow a decreased density of the residential structure on the Property from duplex to single-family residence.

On June 7, 2022, Planning sent written notice to the Perrys that they could not renew their Registration because the Property was covered by the RSO and could not be a short-term rental. The notice explained that even if the Property was not covered before, it was now.

The RSO covers (1) residential structures built before October 1, 1978 that are not single-family homes and (2) a duplex if built before October 1, 1978. The City’s claim is that a duplex house built in 1991 relates back to the 1978 rent control trigger date and causes the Property to fall under the RSO. At best, the RSO is silent as to the situation at hand and the Los Angeles Housing Department (“LAHD”) cannot make its own law.

The Perrys seek (1) a writ of mandate commanding the City to reverse its determination on June 7, 2022, (2) damages of over $25,000, (3) declaratory relief that the Property is exempt from the RSO; (4) a temporary restraining order (“TRO”) and preliminary and permanent injunction compelling the City to issue yearly renewals of the Registration unless otherwise forbidden by law; (5) attorney’s fees under either the private attorney general law (CCP §1021.5) or Government (“Govt.”) Code section 800; and (6) costs.

On July 21, 2022, the court denied the Perrys’ ex parte application for a TRO and order to show cause re: a preliminary injunction compelling the City to renew the Registration for the pendency of this action.

The Perrys seek both administrative and traditional mandamus. CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (1974) 11 Cal.3d 506, 51415. Administrative mandamus lies from a final administrative decision made as the result of a hearing which is required by law, where evidence is required to be taken, and discretion is vested in the decision-maker. CCP §1094.5(a).

Although the parties have prepared an administrative record, the Petition’s claim does not lie in administrative mandamus. There was no hearing required by law at which evidence was required to be taken. See Garcia Decl., ¶9. The Perrys’ claim lies in traditional mandamus.

“A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” CCP §1085(a).

While the City refers to the arbitrary or capricious standard for its RSO determination (Opp. at 8), this case involves the Perrys’ claim that LAHD incorrectly interpreted Los Angeles Municipal Code (“LAMC”) section 150.02 and that LAHD had a ministerial duty to exempt the Property under this provision.

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance. Id. at 584 (internal citations omitted). Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

A ministerial act is one that is performed by a public officer “without regard to his or her own judgment or opinion concerning the propriety of such act.” Ellena v. Department of Insurance, (2014) 230 Cal.App.4th 198, 205. It is “essentially automatic based on whether certain fixed standards and objective measures have been met.” Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Mgmt., (2008) 167 Cal.App.4th 1350, 1359. By contrast, a discretionary act involves the exercise of judgment by a public officer. County of Los Angeles v. City of Los Angeles, (2013) 214 Cal.App.4th 643, 653-54.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty or as an abuse of discretion.

No building erected or structurally altered shall be occupied or used until a certificate of occupancy (“COO”) is issued by the Superintendent of Building. AR 205-06 (LAMC §12.26.E). A COO for a new building or the enlargement or alteration of an existing building shall be applied for at the same time as the application for a building permit. AR 206 (LAMC § 12.26.E.1(a)). The Superintendent will issue the COO once the building or enlargement is completed in conformity with the provisions of the LAMC. AR 206 (LAMC §12.26.E.1(a)).

The Home-Sharing Ordinance (“HSO”)(Ordinance 185931) regulates the use of a primary residence for home sharing as an accessory use, and to establish related fees and fines. AR 235. The HSO protects the stock of affordable housing by prohibiting the home-sharing registration of affordable and rent-restricted housing. Lim Decl., ¶7. Housing subject to affordable housing covenants or the RSO is not eligible for home-sharing. AR 239 (LAMC §12.22.A.32(c)(2)(ii)(b)); Lim Decl., ¶7.

To review HSO registrations, City Planning employees review documents to establish that (1) the applicant's identity via a valid federal or state-issued photo ID; (2) the dwelling unit proposed for home-sharing (short-term rental) is not an RSO property or set aside as affordable, rent restricted, or income-restricted; and (3) the dwelling unit is a primary residence. Lim Decl., ¶12.

The Legislature has declared that there is a housing crisis in California, and it is essential to reduce delays and restraints upon expeditiously completing housing projects. Govt. Code §65009(a)(1).

On May 1, 1979, the City passed the RSO. AR 2. The RSO’s declaration of purpose stated that substantial numbers of renters were unable to find decent, safe and sanitary housing at affordable rent levels and the attempts of renters to pay increased rents often meant reduced spending on other necessities. AR 3 (LAMC §151.01). In August 1978, the City Council enacted temporary measures to roll back recently imposed rent increased and prohibit most increases for six months. AR 3 (LAMC §151.01). These protections were successful, but temporary, and the RSO sought to prevent mass deregulation upon expiration. AR 3-4 (LAMC §151.01). The purpose of the RSO is to safeguard tenants from excessive rent increases, while at the same time providing landlords with just and reasonable returns from their rental units. AR 4 (LAMC §151.01).

The RSO defines “rental units” as “[a]ll dwelling units, housing accommodations, and duplexes and condominiums in the City that are rented or offered for rent for living or dwelling purposes, as well as the land, buildings, and housing services and furnishings supplied in connection with occupancy thereof. AR 6-7 (LAMC §151.02).

This definition has 13 exceptions. AR 6-10 (LAMC §151.02(1)-(13)). As pertinent, the definition of rental units shall not include:

1. One-family dwellings unless two or more such dwelling units are on the same parcel or the dwelling is a duplex or condominium. AR 7 (LAMC §151.02(1)); Garcia Decl., ¶12. LAMC section 12.03 defines a “one-family dwelling” as a detached dwelling containing only one dwelling unit. LAMC §12.03; Garcia Decl., ¶11.

6. “Housing accommodations, located in a structure for which the first Certificate of Occupancy was issued after October 1, 1978, are exempt from [the RSO]. If the structure was issued a Certificate of Occupancy…on or before October 1, 1978, the housing accommodation(s) shall be subject to the [RSO]. If the property was issued a building permit for residential purposes at any time on or before October 1, 1978 and a Certificate of Occupancy for the building was never issue or was not issued until after October 1, 1978, the housing accommodation shall be subject to [the RSO]….” AR 8 (LAMC §151.02(6)).

The sixth exemption as originally enacted in May 1979 stated that it applied when “a certificate of occupancy was first issued after October 1, 1978.” AR 116.

On November 10, 2009, LAHD wrote to then-Mayor Antonio R. Villaraigosa to recommend changes to the RSO. AR 126. One such change would clarify the RSO’s applicability to properties built in the late 19^th and early 20^th centuries when the City did not issue COOs. AR 127, 135. The RSO did not provide definitive guidance whether it applies to properties without a CCO that were occupied prior to 1978. AR 135. LAHD proposed adding clarifying language that the RSO applies to properties built before October 1, 1978 but received a COO after that date. AR 135-36.

On April 6, 2010, City Chief Legislative Analyst Gerry Miller (“Miller”) sent LAHD a report recommending approval of its proposed amendments to the RSO, including the clarifying amendment about properties that were built before October 1, 1978 but received a COO after that date. AR 116-17. Miller stated that the amendment clarifies the applicability of the RSO to such properties. AR 116.

On February 26, 2015, LAHD wrote to then-Mayor Eric Garcetti to recommend more changes to the RSO. AR 141. One change was to clarify the RSO’s applicability to properties that received a temporary COO before October 1, 1978. AR 142. If a property received a temporary COO before October 1, 1978, the RSO applies even if the first full COO was after that date. AR 148, 156.

On or after July 1979, all landlords must have a valid registration from LAHD and serve it on a tenant before accepting or demanding rent from the tenant. AR 11 (LAMC §151.05). Beginning on or after 1982, the registration must be renewed each year. AR 12 (LAMC §151.05(A)(5)). LAHD will renew the registration subject to payment of all annual registration fees, due on January 1 of each year. AR 12 (LAMC §151.05(B)); Steffens Decl., ¶8.

The Property’s address is 2614 - 2616 Pacific Avenue, Venice CA. Andrasian Decl., ¶2. It sits on Lot 25 in Block 29 of Short Line Beach, Subdivision No. 4, in the City. Andrasian Decl., ¶2.

In 1977, the then-owner of the Property built a one-family dwelling on it pursuant to a building permit. AR 172-73, 185, 187-88. On September 16, 1977, the owner applied for a COO for the dwelling, which the City issued on August 3, 1978. AR 171-72, 189.

In 1991, the then-owner of the Property modified the one-family dwelling into a duplex pursuant to a building permit. AR 168-169, 186, 190-91. On June 25, 1991, the owner applied to change the address from 2614 Pacific Avenue to two different street numbers, 2614 and 2616. AR 170. The City issued a COO for the duplex in December 1991. AR 164, 167, 192.

The Perrys bought the Property in 1993 with no intent to rent to anyone. AR 78. They have not rented to long-term tenants and do not intend to do so in the future. AR 78. They have two adult daughters who returned from college to stay at the Property during the COVID-19 pandemic. AR 78. The Perrys anticipate visits from them and their future families, something not possible if they have a long-term tenant. AR 78.

On October 14, 2022, PNC Bank (“PNC”) provided the Perrys with a Property appraisal. AR 593. The report explains that it is an appraisal of a one-unit property or one-unit property with an accessory unit, as opposed to a manufactured home or condominium unit. AR 597, 646. PNC noted that the Property was constructed as a duplex but is still a single-family residence. AR 613. PNC reaffirmed in an addendum that the Property is used as a single-family residence although it is zoned as a duplex. AR 615.

The RSO is intended to be broad in scope to cover accommodations in buildings for which a COO was issued before October 1978. Garcia Decl., ¶7. To determine whether property is subject to the RSO, LAHD’s Inventory Management Inspectors consider public and land records and instruments, Los Angeles Department of Building and Safety (“LADBS”) records, Los Angeles County Assessor parcel information, Land Use Planning and Management System data that is monthly updated by the County Assessor's office and City bureaus, and use and occupancy information. Andrasian Decl., ¶5; Garcia Decl., ¶10. LADBS issues COOs that reflect changes to building characteristics and LAHD is not always aware of changes to properties and can misclassify them as a result. Andrasian Decl., ¶5.

LAHD assumes that a unit falls under the RSO unless it finds that the unit falls into one of 13 exemptions, which are construed narrowly. Garcia Decl., ¶¶ 6-7. The construction of an additional unit attached to an original non-RSO structure with a pre-1978 COO will cause all units to fall under the RSO. Garcia Decl., ¶8. There is no RSO language restricting LAHD’s ability to refer to the original design and construction of a building in making RSO property status determinations. Garcia Decl., ¶¶ 8, 15. Properties change and the first-issued COO controls whether the RSO applies under LAMC section 151.02’s definition of a rental unit. Garcia Decl., ¶¶ 15-16.

LAHD’s Rent Division issues a determination on RSO applicability without a hearing; aggrieved applicants may appeal in court. Garcia Decl., ¶9.

LAHD sends annual bills to landlords for regulatory RSO and SCEP fees with an Exemption Application Form. Steffens Decl., ¶8. Beginning in 2017, in addition to the RSO registration fee, LAHD requires landlords to (1) submit annual Rent Registry forms via the online Rent Registry Portal; and (2) pay the annual registration fee to receive an Annual Statement of Registration. Steffens Decl., ¶9.

The City sent rent control forms to the Perrys from 2005 through 2009. Michael Decl., ¶2. The annual fee bills show for the two units on the Property that the Perrys (1) in 2005 paid fees for one and had one permanently exempted; (2) in 2006 paid fees for one and had one temporarily exempted; (3) in 2007 paid fees for both; and (4) in 2008 paid fees for both. Steffens Decl., ¶¶ 13(c)-(f).

After filing rent control forms for four years, the Perrys realized that they need not pay the fees because they were not renting any part of their home and did not plan to do so. Michael Decl., ¶2; AR 176-79, 197-98. Michael explained this to LAHD in returning the 2009 form. Michael Decl., ¶2.

As of the July 12, 2022 filing date of the Petition, the City’s website listed the Property as exempt from the RSO. AR 79, 100.

LAHD’s Billing Information Management System (“BIMS”) shows that it did not send more rent control forms to the Perrys or charge more fees until after the Petition was filed. AR 176-79; Michael Decl., ¶2; Steffens Decl., ¶7. On July 12, 2022, LAHD sent rent control forms for 2021 and 2022. Michael Decl., ¶2.

In 2018, the Perrys decided to register the Property for short-term rental of the first floor of the Property as part of their owner-occupied home after their youngest daughter moved away to attend college. AR 79. Planning approved the Perrys’ short-term rental Registration application on October 28, 2019. AR 90-91. As a result, the Perrys began renting to short-term tenants. AR 78 (Pet., ¶11).

Planning renewed the Property’s short-term rental Registration on July 20, 2020 and June 17, 2021. AR 79, 93-94, 96-98.[2]

Before January 2020, the Perrys could have applied to change the COO from a duplex to a single-family dwelling. AR 79. They chose not to do so in reliance on the City’s decision that the Property was exempt from rent control even though a duplex. AR 79-80.

After the Legislature passed SB 330 in January 2020, and more so after SB 8 was passed, the City and Coastal Commission would not permit any decrease of the Property’s residential density, including a conversion from a duplex to a single-family dwelling. AR 79-80.

Planning’s website includes a Frequently Asked Questions (“FAQ”) page for the HSO. AR 396. The website explains that a residence cannot be eligible if it is subject to the RSO. AR 397.[3] The FAQ states that the RSO applies to most non-single-family rental units constructed before 1978, or any other affordability provisions such as an affordable housing covenant. AR 397.

Both the FAQ and Planning’s webpage on home sharing state that landlords can search the City's web-based mapping tool, Zone Information and Map Access (“ZIMAS”), to determine if their property must be registered to collect rent. AR 158.4, 397. The FAQ page warns viewers that information on ZIMAS is subject to change. AR 397. Warnings on the website disclaim all liability the City may otherwise incur for reliance on inaccurate information on ZIMAS. Andrasian Decl., ¶6.

The Perrys attempted to renew their short-term rental Registration for 2022. On June 7, 2022, Planning rejected the Registration application, both for incompleteness and because the Property is subject to the RSO as a result of the additional dwelling unit, even if it was not before. AR 102-03; Lim Decl., ¶21e. Planning explained that the Perrys could contact LAHD to obtain a letter of determination if they felt the RSO designation was incorrect. AR 103.

The Perrys contacted LAHD’s RSO Determination Unit the same day. AR 80. A representative, Armando, told them that the Property is a single-family home that was converted to a duplex after October 1978 and is subject to rent control per LAMC section 151.02(6). AR 80-81.

On July 20, 2022, LAHD’s Senior Management Analyst II Emma Garcia (“Garcia”) sent the Perrys an RSO Status Determination letter upholding the finding that the RSO applies to the Property. AR 72-73; Steffens Decl., ¶13(i). Garcia’s letter explained that a building’s original COO controls the determination whether a unit is subject to the RSO, regardless of whether additional COOs may have been issued for remodeling or additions to the buildings containing the rental units. AR 72. LAMC section 151.02’s first exception exempts one-family dwellings but not duplexes. AR 72. LAMC section 151.02’s sixth exception covers housing accommodations for which the first COO was issued after October 1, 1978. AR 73. The original COO for the Property was issued on August 3, 1978. AR 73. In 1991, a second COO converted the single-family dwelling into a duplex. AR 73. Because the 1978 COO was issued before October 1, 1978, all housing accommodations located in the structure are subject to the RSO notwithstanding the issuance of the 1991 COO. AR 73.

(4) a General Zoning Map generated from a June 14, 2022 arial survey that showed all the units on the Property attached as one building. (AR 71, 165-66);

(8) the Perrys’ July 13, 2022 Conditional Exemption Application seeking an exemption for a duplex constructed after 1978; and

(9) the Perrys’ August 8 and August 22, 2022 Exemption Applications for years 2021 and 2022 seeking exemptions for the two units as owner occupied. Garcia Decl., ¶18.[4]

There is no RSO language restricting LAHD from referring to the original design and construction of a building in making RSO property status determinations. Nor does the RSO limit LAHD’s ability to make these determinations for modified and current building configurations, structures, and uses. Garcia Decl., ¶8.

The City Clerk’s Detail of Communications and Actions of the City Council do not reflect that the City Council ever considered a scenario in which a landlord’s dwelling is a single-family dwelling in practice but is registered as a duplex. AR 441-63.

Beginning in 2017, LAHD sends a Registration Exemption Application with all fee bills so that property owners may apply for a temporary exemption from registration requirement and payment of fees. AR 66; Garcia Decl., ¶14. A temporary exemption may be granted under circumstances such as (a) the owner will be occupying the relevant unit, (b) the owner will not be collecting rent for the entire year for that unit, and (c) the unit will be vacant for the entire year. Garcia Decl., ¶14.

The Property and the Perrys are subject to the RSO but can still be temporarily exempt from fees for years where no rent was collected, or the Property was owner-occupied. AR 73; Steffens Decl., ¶10. The Perrys must return a completed Registration/Exemption Application form to explain the temporary exemption. AR 73; Steffens Decl., ¶10.

The Perrys exercised this option for both 2021 and 2022 after they created an online account to manage the Property on August 8, 2022. Steffens Decl., ¶¶ 13(b), (g)-(h), (j)-(k). On July 13, 2022, the Perrys filed a Conditional Exemption Application with LAHD for that year. AR 162. They alleged that the Property was exempt from RSO as built after October 1, 1978. AR 162-63.

On August 3, 2022, LAHD assessed fees of $213.38 for each of 2021 and 2022. AR 197; Garcia Decl., ¶17. The Perrys submitted both rent control forms with claims that the Property was exempt from such fees because they will not be collecting rent. LAHD approved the exemptions on August 8, 2022. Michael Decl., ¶2; AR 180, 199.

In response to the Perrys’ special interrogatories in this action, the City answered in pertinent part as follows.

To determine the Property’s HSO qualifications between 2019 and 2021, the City reviewed (1) primary residence verification documents; (2) ZIMAS information, including the Housing tab; and (3) the HSO Registration application submitted via the Online Registration Portal. AR 719-723. The City reviewed the same information in 2022 plus http://lacitydbs.org/buildinginfo for building record information. AR 723-24.

Until 2021, Planning relied on ZIMAS’s representation that the Property is not subject to the RSO. AR 724-25. This led to Planning’s decision to grant the Perrys’ 2019, 2020, and 2021 HSO short-term rental Registrations. AR 724-25; see Lim Decl., ¶¶ 22(a)-(c).

In April 2021, LAHD alerted Planning’s Home-Sharing Unit (“HSU”) that ZIMAS did not reflect the most up-to-date information, especially for properties where additional dwelling units were added. AR 725. In those cases, the main residence and sometimes the additional unit became subject to the RSO if the main residence was built prior to October 1, 1978. AR 725.

After HSU learned this information, it added the review of building permit records to its process to ascertain the RSO status of property and would not issue HSO registration when a property is ineligible. AR 725. If it determines that a property is subject to the RSO, it advises the applicant that he or she can seek an official determination from LAHD and HSU will defer to that determination. AR 726; Lim Decl., ¶20.

The 2022 review for the Property led HSU to conclude that the Property is subject to the RSO, and it never received any direction from LAHD otherwise. AR 726.[5]

The Perrys argue that LAHD misinterpreted LAMC section 151.02 to include the Property’s duplex to be within the RSO, thereby preventing them from using the duplex for short-term rental under the HSO, and (2) the City is estopped from enforcing the RSO against their Property.[6]

The City has broad police power authority to regulate the use of real property within its jurisdiction to promote the public welfare. Cal. Const., art. XI, § 7; Big Creek Lumber Co. v. County of Santa Cruz, (2006) 38 Cal. 4th 1139, 1151-52. This power can only be exercised within the city’s boundaries but otherwise is as broad as the police power exercised by the Legislature. Birkenfeld v. City of Berkeley, (1976) 17 Cal. 3d 135, 140. The prevention of excessive and unreasonable rent increases caused by the growing shortage of and increasing demand for housing in the city is a legitimate government interest. Santa Monica Beach v. Superior Court, (1999) 19 Cal. 4^th 952, 970. “A rent control law, even if imperfect, may protect existing tenants, including the poor and elderly, from being displaced due to rising rents in a tight market.” Id. at 971.

In 1978, the City Council conducted hearings/studies for adopting rent control. AR 2-4, LAMC §151.01. The City adopted the RSO (LAMC §§ 151.01 et seq.) to regulate rents to safeguard tenants from excessive rent increase while providing landlords with just and reasonable returns from their rental units. AR 3-4 (LAMC §151.01). The City found that its housing shortage without rent regulation would cause widespread exorbitant rent increases, and recurrence of the rental housing crisis that existed before the RSO was enacted. AR 3-4, LAMC § 151.01.

LAHD’s Rent Division administers the RSO, which was enacted in 1978 to safeguard tenants from excessive rent increases while providing landlords with just and reasonable returns on their units. AR 3-4, LAMC §151.01. All residential rental units and housing accommodations are presumed to fall under the RSO unless they fall into one of 13 exceptions. AR 6-10 (LAMC §151.02) (Definition of Rental Unit). Garcia Decl., ¶6.

This case presents an issue of statutory construction. The construction of local agency charter provisions, ordinances, and rules is subject to the same standards applied to the judicial review of statutory enactments. Domar Electric v. City of Los Angeles, (1994) 9 Cal.4^th 161, 170-72; Department of Health Services of County of Los Angeles v. Civil Service Commission, (1993) 17 Cal.App.4th 487, 494. In construing a statute, a court must ascertain the intent of the legislature so as to effectuate the purpose of the law. Brown v. Kelly Broadcasting Co., (1989) 48 Cal.3d 711, 724; Orange County Employees Assn. v. County of Orange, (“Orange County”) (1991) 234 Cal.App.3d 833, 841.

“The ‘key to statutory interpretation is applying the rules of statutory construction in their proper sequence ... as follows: we first look to the plain meaning of the statutory language, then to its legislative history and finally to the reasonableness of a proposed construction.’” Mt. Hawley Ins. Co. v. Lopez, (2013) 215 Cal. App. 4th 1385, 1396–97 (citation omitted).

The court first looks to the language of the statute, attempting to give effect to the usual, ordinary import of the language and seeking to avoid making any language mere surplusage. Brown v. Kelly Broadcasting Co., (1989) 48 Cal 3d 711, 724. Significance, if possible, is attributed to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. Orange County, supra, 234 Cal.App.3d at 841. “’The statute's words generally provide the most reliable indicator of legislative intent; if they are clear and unambiguous, ‘[t]here is no need for judicial construction and a court may not indulge in it. [Citation.]’” MCI Communications Services, Inc. v. California Dept. of Tax & Fee Administration, (“MCI”) (2018) 28 Cal. App. 5th 635, 643.

If a statute is unambiguous, an agency's interpretation is entitled to no deference. Bonnell v. Medical Board, (2003) 31 Cal. 4th 1255, 1265. For an ambiguous statute, the agency's "construction ... is entitled to consideration and respect, [but] it is not binding and it is ultimately for the judiciary to interpret[.]" Murphy v. Kenneth Cole Prods., Inc., (2007) 40 Cal. 4th 1094, 1105, n.7. The agency’s interpretation is entitled to consideration if its construction has a reasonable basis. Ontario Community Foundations, Inc. v. State Bd. of Equalization, (1984)35 Cal.3d 811, 816. An agency's interpretation of an ambiguous statute consisting only of the agency's litigating position, without promulgation of formal regulations, is entitled to no deference. Culligan Water Conditioning, Inc. v. State Bd. of Equalization, (1976) 17 Cal. 3d 86, 92-93.

The RSO exempts a detached dwelling containing only one dwelling unit under LAMC section 12.03, but a duplex is not within section 151.02(1)’s exception for single-family dwellings: “1. Dwellings, one family, except where two or more dwelling units are located on the same parcel. This exception shall not apply to duplexes…” (emphasis added). Garcia Decl., ¶¶ 3-4.

The RSO also exempts “[h]ousing accommodations, located in a structure for which the first Certificate of Occupancy was issued after October 1, 1978….” LAMC §151.02(6).

“6. Housing accommodations, located in a structure for which the first Certificate of Occupancy was issued after October 1, 1978, are exempt from the provisions of this chapter. If the structure was issued a Certificate of Occupancy, including a Temporary Certificate of Occupancy, on or before October 1, 1978, the housing accommodation(s) shall be subject to the provisions of this chapter. If the property was issued a building permit for residential purposes at any time on or before October 1, 1978, and a Certificate of Occupancy for the building was never issued or was not issued until after October 1, 1978, the housing accommodation shall be subject to the provisions of this chapter. (Amended by Ord. No. 184,822, Eff. 4/30/17.)” AR 4, 10.

LAHD determined that the construction of an additional unit to a non-RSO structure having a pre-October 1, 1978 COO will cause all units to fall under the RSO. Garcia Decl., ¶8. This is true because the first-issued COO controls whether the RSO applies under section 151.02(6). Garcia Decl., ¶16.

On July 22, 2022, LAHD Rent Division Sr. Management Analyst II Garcia served the Perrys with an RSO Status Determination (AR 72-73) for their duplex which denied an exception under section 151.02. AR 72-73. Housing subject to the RSO is excluded from being registered for short-term rental. LAMC §12.22.A.32(c)(2)(ii)(b); Lim Decl., ¶7. Thus, the Perrys are excluded from renting their ground floor duplex as a short-term rental under LAHD’s interpretation of section 151.02.

The Perrys argue that LAHD’s conclusion that a new duplex built after October 1, 1978 is subject to the RSO is directly contrary to the clear wording of the statute. LAHD’s interpretation of section 151.02(6) conflicts with the RSO because (1) the purpose of the RSO is to avoid the imposition of rent control restrictions on single family homes and to exempt from rent control those constructions built after the 1978 enactment of the RSO, and (2) there is no mechanism in the RSO for revocation of an exemption once granted. Pet. Op. Br. at 13.

The Perrys note that the City has issued a COO for the Property twice, first as a single-family home in 1978 and then a duplex in 1991. They contend that, since early 2000, and before the Perrys’ second daughter was born, their home has in fact and functionally operating as a single-family home. The appraisers (three over the last ten years) and lenders for the Property also treat it as a single-family home notwithstanding the City’s characterization as a duplex. AR 597, 613, 615, 646, 666, 689. Pet. Op. Br. at 11-12; Reply at 5-6.

If the Perrys are contending that the Property is a single-family home and not a duplex, they are wrong. LADBS building permits and COOs document the legal uses of structures in the City. In 1977, the Property was constructed as a two-story single-family residence under Building Permit No. 1977 WLA 15721. AR 172-73, 185. When construction was complete, a COO was issued on August 3, 1978 identifying the structure as a two-story, one-family dwelling and attached garage. AR 171-72, 189. In 1991, then-owner Janice Jerde converted the one-family dwelling into a duplex by attaching a third-story dwelling unit with kitchen bearing the address of 2616 S. Pacific Avenue. Andriasian Decl., ¶9; AR 186-88; 190-91. On December 12, 1991, a COO was issued stating: “CONVERSION OF A 3 STORY, TYPE V, 21’ 10” X 60’ 7” SINGLE FAMILY DWELLING WITH ATTACHED GARAGE INTO A DUPLEX WITH ATTACHED GARAGE….” AR 164. Thus, the Property was a single-family residence built before 1978 which became a duplex in 1991.

Given that the Property’s dwelling is a duplex, the Perrys argue that the plain wording of section 151.02(6), read in conjunction with the rest of section 151.02, demonstrates that the exception does not have a purpose of including within the RSO a single-family home otherwise exempt that was converted to a duplex in 1991 with an additional third floor added to the structure and with a new COO. The Perrys note that the RSO exempts a duplex built after October 1978. They contend that their duplex was built in 1991 and therefore should be exempt from RSO.

The Perrys add that the City agreed with the Perrys for more than 13 years. LAHD’s website shows the Perrys’ home as exempt from the RSO. AR 100. Now, with no change in the law, LAHD says that Perry’s three-floor duplex, which did not exist until 1991, relates back to the RSO’s 1978 rent control trigger date and has been covered by the RSO since 1991. Pet. Op. Br. at 12.

The Perrys argue that LAHD’s interpretation of section 151.02(6) improperly adds language. In interpreting a statute, a court may not insert language and may not rewrite it to conform to an assumed intention which does not appear from its language. Crusader Ins. Co. v. Scottsdale Ins. Co., (1997) 54 Cal.App.4th 121, 134. The courts presume legislatures intended everything in a statutory scheme, and courts do not read statutes to omit expressed language or to include omitted language. Tyrone W. v. Superior Court, (2007) 151 Cal.App.4th 839, 850. See Pet. Op. Br. at 13-14.

At most, the RSO does not address the circumstances of the Perrys’ Property and LADH has no authority to create a new law making a single-family home legally converted to a duplex after 1978 as subject to the RSO) that did not pass the muster of the City Council and Mayor. LAHD was not granted the power by the City Council to revoke the exemptions for the Perrys’ home that was not covered by the RSO. Nor was LAHD granted the power to determine that two exempt classifications of the Perrys’ home not controlled by the RSO equal a controlled classification that is subject to the RSO. Pet. Op. Br. at 12-13.

The Supreme Court addressed this point in W. Virginia v. Env't Prot. Agency, (2022) 142 S.Ct. 2587:

“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”…Where the statute at issue is one that confers authority upon an administrative agency, that inquiry must be “shaped, at least in some measure, by the nature of the question presented”—whether Congress in fact meant to confer the power the agency has asserted….Extraordinary grants of regulatory authority are rarely accomplished through “modest words,” “vague terms,” or “subtle device[s].” Pet. Op. Br. at 13-14.

The Perrys argue that the City Council never considered the fact pattern of this case or that intended these facts to be covered by the RSO. Reply at 4. If the City Council intended the RSO to cover an exempt single-family home built after October 1978, and then rebuilt in 1991 as a legal duplex, it would have said so in section 151.02(6). Instead, the City Council created vague language that could be interpreted many ways. Pet. Op. Br. at 14.

Aside from the fact that the Perrys inconsistently argue that section 151.02(6) has a plain meaning (Pet. Op. Br. at 12) and that it is vague as demonstrated by Planning’s mistaken interpretation (Pet. Op. Br. at 14; Reply at 3-4) (see post), they ignore the fact the RSO is broad in scope and expressly states that all residential rental units in the City are presumed to fall under the RSO unless one of 13 exceptions applies. AR 6-10 (§151.02 (Definition of Rental Units); Decl. Garcia ¶¶ 6-7. These 13 exemptions are narrowly construed. See Chun v. Del Cid, (2019) 34 Cal. App. 5th 806, 815. Thus, section 151.02(6) must be narrowly construed and this narrow construction must apply to the Property in order to overcome the RSO’s presumption that it is within the RSO.

The plain language of section 151.02(6) as narrowly construed does not exempt the Property. Section 151.02(6) states in pertinent part: “Housing accommodations, located in a structure for which the first Certificate of Occupancy was issued after October 1, 1978, are exempt from the provisions of this chapter. If the structure was issued a Certificate of Occupancy, including a Temporary Certificate of Occupancy, on or before October 1, 1978, the housing accommodation(s) shall be subject to the provisions of this chapter. AR 4, 10 (emphasis added).

The plain language of section 151.02(6) states that no exemption from the RSO applies where a structure received its first COO before 1978. The word “structure” is not defined in the RSO but it is defined as: “Any construction…that which is built or constructed; an edifice or building of any kind….” Black’s Law Dictionary, (4^th ed. 1968) p. 1592. There is no question, and the Perrys do not argue to the contrary, that their single-family residence is a structure. So is the duplex which is all part of a single structure. Thus, the plain language of section 151.02(6) provides that the RSO applies if the first COO for the structure on the Property was issued before 1978, and it was.

The fact that the structure was added onto or altered after this first COO by converting it into a duplex does not affect this plain meaning. A COO is issued by LADBS whenever a building is constructed, added onto, or altered. Burien, LLC v. Wiley, (2014) 230 Cal. App. 4th 1039, 1047. A COO was necessary for the addition that converted the single-family dwelling or structure into a duplex. But this was not the first COO for the structure. The City’s evidence is that the first issued CCO controls an RSO Determination when there are attached structural alterations to a pre-October 1978 building adding units on the same lot. See Da Vinci v. San Francisco Residential Rent Etc., (1992) 5 Cal. App. 4th 24, 30 (property did not meet San Francisco's RSO exemption for COO issued after the ordinance date because conversion of illegal units in warehouse to legal units through renovations and permitting did not qualify to ease “the housing shortage by encouraging creation of new residential rental units where there were none before.”)

The Perrys’ argument that this interpretation of section 151.02(6) improperly adds language fails to cite any specific language that must be added. See Pet. Op. Br. at 13-14. In fact, there is none. The court’s plain meaning interpretation of section 151.02(6) relies on the words in the exemption and no more.

The Perrys’ argument that section 151.02(6) does not address their circumstance and LADH has no authority to create a new law making a single-family home legally converted to a duplex after 1978 subject to the RSO, also fails. See Pet. Op. Br. at 12-13. Section 151.02(6), like all statutes and ordinances, sets a general standard that is applied to fact situations. It is not a usurpation of the City Councils’ power to do so. LAHD’s interpretation is not an extraordinary grant of regulatory authority accomplished through modest words or vague terms as discredited in W. Virginia v. Env't Prot. Agency, supra, 142 S.Ct. at 2587.

The Perrys argue that LAHD’s interpretation is an unlawful retroactive application. It has long been established that a statute that interferes with antecedent rights will not operate retroactively unless such retroactivity be “the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.” “[A] statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application.” McClung v. Emp. Dev. Dep't, (2004) 34 Cal.4th 467, 475. There is no clear language that the RSO would be applied retroactively to a duplex built after October 1978 or a single-family home converted to a duplex after 1978. Pet. Op. Br. at 14.

Not so. LADH did not apply section 151.02 retroactively; it applied it in 2022 to determine that the duplex is subject to the RSO and thus not eligible for short-term rental under the HSO.

The Perrys note that courts should interpret statutes and ordinances to avoid absurd results. See B.H. v. County of San Bernardino, (2015) 62 Cal.4th 168, 190; Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes, (2010) 191 Cal.App.4th 435, 465 (municipal resolution). The City’s interpretation of section 151.02(6) leads to an absurd result. LADH says that a new duplex built from the ground up after October 1, 1978 is not covered by the RSO, but a new duplex not entirely built from the ground up is. In both cases, a COO is required for any person to habitat the new duplex. In contrast, the Perrys’ interpretation of section 151.02(6) is reasonable, not absurd. They merely contend that a duplex built after October 1, 1978 is not covered by the RSO. Their COO for a duplex issued in 1991 was for a structure that was a new duplex and a new duplex built after 1991 is not covered by RSO. Reply at 4-5.

Neither side’s position would lead to an absurd result. The Perrys reasonably can argue that there is no absurdity if the RSO does not apply to an addition to a single-family residence built after 1978 that converts it to a duplex. But LAHD’s position that the original structure’s construction and COO date determines the outcome for application of the RSO does not lead to any absurdity, and the Perrys point to none. This is particularly true in light of the fact that the RSO is intended to apply to all rental properties unless an exception applies.

Finally, if arguendo there is ambiguity in section 151.02(6), LAHD’s interpretation is entitled to respect if not deference. See Murphy v. Kenneth Cole Prods., Inc., supra, 40 Cal. 4th at 1105, n.7. LAHD’s mandate is to broadly construe the RSO, and narrowly construe its exemptions, to create/maintain affordable housing in the City. Garcia Decl., ¶7. A housing board’s interpretation of a rent control ordinance is worthy of deference if it comports with the ordinance’s principal goal of easing the housing shortage by encouraging the creation of new residential rentals where none existed before. Chun v. Del Cid, supra, 34 Cal.App.5^th at 815. LAHD’s interpretation of section 151.02(6) meets the RSO’s principal goal. While this interpretation was made by LAHD’s Rent Stabilization Division and not a housing board, it is the “common understanding and policy” of that Division. Garcia Decl., ¶13. As such, it is a standing policy worthy of respect and not an ad hoc determination.

The Perrys argue that there appears to be no legislative history for section 151.02 and nothing in the amendments to section 151.02 indicating whether the City Council contemplated the situation of an exempt single-family home that converts to a duplex after October 1, 1978 for purposes of an exception to the RSO. Nor is there any legislative history that the phrase “certificate of occupancy was first issued after October 1, 1978” means that a duplex built from an RSO exempt single family home is not exempt from RSO. Pet. Op. Br. at 9-10.

“M. Rental Units: all dwelling units, efficiency dwelling units, guests, rooms, and suites in the City of Los Angeles, as defined in section 12.03 of this Code, together with the land and buildings appurtenant thereto, and all housing services, privileges, furnishings, and facilities supplied in connection with the use or occupancy thereof, including garage and parking facilities. This term shall also include mobile homes, whether rent is paid for the mobile home and the land upon which the mobile home is located or rent is paid for the land alone.” The term shall not include:…

6. Housing accommodations located in a structure for which a certificate of occupancy was first issued after October 1, 1978.”

As the Perrys argue, the subsequent amendments to section 151.02(6) were technical in nature and pertained to situations where a COO had not been issued for the property and the amendments made clear that those structures would be covered by RSO. Pet. Op. Br. at 10.

“Housing accommodations, located in a structure for which the first certificate of occupancy was issued after October 1, 1978, are exempt from the provisions of this Chapter. If the property was occupied for residential purposes prior to October 1, 1978 and no Certificate of Occupancy was issued for the subject building after October 1, 1978, the housing accommodation shall be subject to the provisions of this Chapter if relevant documentation, such as a building permit, establishes that the building was first occupied for residential purposes prior to October 1, 1978. This exception shall not apply to an individual mobilehome coach, mobilehome park, individual recreational vehicle or recreational vehicle park.” AR 110, 116.

In its recommendation for adoption of the amendment to the City Council, LADH described the proposed change to section 150.02(b) as a “[c]larification of RSO applicability to properties built when City did not issues [sic] Certificates of Occupancy.” AR 116. The Chief Legislative Analyst to the City Council also commented: “This amendment clarifies the applicability of the RSO to properties built when the City did not issue Certificates of Occupancy (C of O) by re-defining rental units. Currently, the RSO fails to provide definitive guidance regarding its applicability to properties without a C of O.” AR 116.

LAHD’s November 2009 report to then-Mayor Villaraigosa on the proposed technical amendments, which was then transmitted to the City Council, further explained that “[h]istorically, the City of Los Angeles did not issue Certificates of Occupancy during certain decades of the late 19th Century and early 20th Century for particular types of residential buildings. The RSO's current statutory language fails to provide definitive guidance as to its applicability to properties without a Certificate of Occupancy which were occupied prior to October 1, 1978. LAHD, therefore, recommends amendment of the definition of Rental Units in LAMC Section 151.02 to clarify the exemption for properties which receive their first Certificate of Occupancy after October 1, 1978….” AR 135. Pet. Op. Br. at 9-11.[7]

The court agrees that section 151.02’s legislative history does not address the circumstance of an exempt single-family home that converts to a duplex after October 1, 1978. Therefore, it does not aid the analysis of the proper interpretation of the exemption. LAHD’s interpretation of section 151.02(6) is supported by its plain meaning.

The Perrys contend that the City should be estopped from revoking the Registration and suddenly deeming the Property to be covered by the RSO. Pet. Op. Br. at 14.

[T]he doctrine of equitable estoppel is founded on concepts of equity and fair dealing.’ ‘The essence of an estoppel that the party to be estopped has by false language or conduct “led another to do that which he [or she] would not otherwise have done and as a result thereof that he [or she] has suffered injury.” Steinhart v. County of Los Angeles, (2010) 47 Cal.4th 1298, 1315). Equitable estoppel applies in circumstances where a party has induced another into forbearing to act. Lantzy v. Centex Homes, (2003) 31 Cal..App.4th 363, 383.

The elements of estoppel are: (1) the party to be estopped must be appraised of the facts; (2) he must intend that his conduct shall be acted upon; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. Driscoll v. City of Los Angeles, (1967) 67 Cal.2d 297, 305. The doctrine applies to a public entity in the same manner as a private party when the elements of equitable estoppel have been shown, and when the injustice which would result from a failure to estop the agency is sufficient to justify any adverse effect upon public interest or policy which would result. City of Long Beach v. Mansell, (1970) 3 Cal.3d 462, 496-97.

Estoppels against a government entity “are rare and are to be invoked only in extraordinary circumstances”. Chaplis v. County of Monterey, (1979) 97 Cal. App. 3d 249, 253. Estoppel may not be applied against the government when it would nullify a strong rule of public policy adopted for the public benefit. Page v. City of Montebello, (1980) 112 Cal. App. 3d 658, 667. Estoppel can be invoked in the land use context against a government entity in only the most extraordinary cases where the injustice is great and the precedent set by the estoppel is narrow. Golden Gate Water Ski Club v. County of Contra Costa, (2008) 165 Cal. App. 4th 249, 250.

The Perrys argue that the City publicly published/admitted in writing that the Property is not covered by the RSO. For many years, Planning’s website stated as follows:

“Restrictions on Affordable and RSO Housing: The residence must not be subject to the City's Rent Stabilization Ordinance (RSO),which applies to most multi-family units constructed before 1978, or any other affordability provisions such as an affordable housing covenant. For information on whether a property is subject to the RSO, search the City's web based mapping tool – Zone Information and Map Access (ZIMAS): zimas.lacity.org. The Housing tab will display If the unit is subject to the RSO.” AR 158.4; see also AR 397.

The Property was not listed as covered by the RSO until 2022. The Perrys argue that their home should not be covered by the RSO based on Planning’s representation to the general public. Reply at 3. They contend that LADBS (actually, Planning) intended people to rely on its statement about the RSO published on its website. The Perrys had no reason to believe the representation was false and had no knowledge otherwise at the time they inquired. They relied on the representation to their detriment because they could have changed the designation of their home from a duplex to a single-family home and did not do so because the City deemed the home exempt from the RSO. AR 79, 80. With the passage of SB 330 (and now SB 8) in January 2020, the City and the Coastal Commission will not allow the Perrys to do so because it would decrease the existing density of the Property from a duplex to a single-family home. As a result, they have been harmed by the City’s diametrically opposed interpretations of the same code section. They Perrys conclude that the City should be estopped from reversing the RSO exemption for the Property. Pet. Op. Br. at 14; Reply at 4.

This is not the rare land use case where estoppel should be applied against the City to prevent an injustice. See Golden Gate Water Ski Club v. County of Contra Costa, supra, 165 Cal. App. 4th at 250.

The Perrys do not meet the first element of estoppel -- that the City knew the true facts. As the Perrys point out (Pet. Op. Br. at 14), this element requires proof of either actual knowledge or of “careless and culpable conduct resulting in the deception of the party entitled to claim the estoppel.” City of Pleasanton v. Bd. of Admin., (2012) 211 Cal.App.4th 522, 543. LADBS issues COOs that reflect changes to building characteristics and LAHD is not always aware of those changes and can misclassify properties as a result. Andrasian Decl., ¶5. Planning approved the short-term rental Registration of the Perry’s duplex for three years based upon a mistake in the City’s ZIMAS database that stated the duplex was not subject to the RSO. Lim Decl., ¶¶ 22c, 23. When Planning realized the ZIMAS mistake, it denied the Perrys’ 2022 short-term rental Registration.

The Perrys have not shown that anyone at Planning, LAHD, or LADBS knew that the Property should be characterized as within the scope of the RSO before Planning’s June 7, 2022 RSO determination (AR 102-03; Lim Decl., ¶21(e)), as confirmed by LAHD Senior Analyst Garcia’s July 20, 2022 RSO Status Determination (AR 72-73; Steffens Decl., ¶13(i)). Nor have the Perrys shown that LAHD’s failure to note the duplex change was careless and culpable conduct.

The Perrys have met the second element – that the City intended for the Perrys to act on the ZIMAS listing of the Property as exempt from the RSO. Planning’s website includes a FAQ page for the HSO which states that the RSO applies to most non-single-family rental units constructed before 1978, or any other affordability provisions such as an affordable housing covenant. AR 397. Both the FAQ and Planning’s webpage on home sharing state that landlords can search the City's web-based mapping tool, ZIMAS, to determine if their property must be registered to collect rent. AR 158.4, 397. Plainly, the City intends readers to act on the ZIMAS listing by using it.

The Perrys do not meet the third element – that they did not know the duplex was within the RSO. They correctly note that the party claiming estoppel must also prove both lack of actual knowledge of the true facts and lack of sufficient notice to put a reasonably prudent man upon inquiry. Pet. Op. Br. at 14.

The City argues that the Perrys had notice that their duplex was covered by the RSO. The City sent rent control forms to the Perrys from 2005 through 2009. Michael Decl., ¶2. The annual fee bills show for the two units on the Property that the Perrys (1) in 2005 paid fees for one and had one permanently exempted; (2) in 2006 paid fees for one and had one temporarily exempted; (3) in 2007 paid fees for both; and (4) in 2008 paid fees for both. Steffens Decl., ¶¶ 13(c)-(f).

The evidence shows that the Perrys had notice that the Property is within the scope of the RSO unless it is exempt. Although the Perrys believed that payment of RSO fees was unnecessary because they were not renting the Property, this changed when they applied to Planning for short-term rental Registration beginning in 2018. At that point, they were on notice that the RSO may apply to the Property as a duplex and they had a duty to inquire. This raises the issue whether they could rely solely on ZIMAS.

The fourth element is that the Perrys must rely upon the ZIMAS information to their injury. The Perrys argue that the ZIMAS error caused them not to change the designation of their Property from a duplex to a single-family home and the passage of SB 330 in January 2020 prevents them from doing so now.

The City points out that the Perrys cannot rely on ZIMAS because of its disclaimer. Andriasian Decl., ¶¶ 5-6. ZIMAS contains an information disclaimer that had to be user-acknowledged stating: “[d]ue to the dynamic nature of the information contained within this web site and the reliance on information from outside sources, the City does not guarantee the accuracy or reliability of the information transmitted from this web site.…” Decl. Andriasian ¶¶ 5-6. Similarly, the FAQ page warns viewers that information on ZIMAS is subject to change. AR 397. Warnings on the website disclaim all liability the City may otherwise incur for reliance on inaccurate information on ZIMAS. Andrasian Decl., ¶6.

The Perrys describe this argument as absurd, arguing that Planning relies on ZIMAS in issuing the short-term rental Registrations (AR 720-25), there is no evidence that this disclaimer that existed on ZIMAS’ website in 2020 when the Perrys’ application for the short-term rental Registration was first submitted, and Planning’s website expressly refers the reader to ZIMAS to determine whether the proposed property is subject to RSO. AR 154.4. The City cannot tell the public to rely on its written word and latter say that a member of the public should not have relied on it.

The Perrys point is untenable. They have to take the website for what it is: an informational database the accuracy of which the City disclaims. The FAQ page warns viewers that information on ZIMAS is subject to change. AR 397. The website disclaims all liability the City may otherwise incur for reliance on inaccurate information on ZIMAS. Andrasian Decl., ¶6. While there is no express evidence that the website disclaimer existed in 2020, an inference may be drawn that it did; the disclaimer is not the type of matter that would be added to the ZIMAS website after the fact. Thus, the Perrys could not rely solely on ZIMAS for their determination.

In any event, the Perrys’ purported reliance on the website not to recharacterize the Property from duplex to single family dwelling is unsupported. There is no evidence that they were sufficiently prescient, or at least kept sufficient track of proposed and new legislation, to know that they would need to seek a reduced density designation for their Property before SB 330 became effective in 2020. Thus, if LAHD had informed the Perrys in 2018 that their duplex was within the RSO, the Perrys have not shown that they would have sought a density change to single family dwelling, or that they would have succeeded.

Finally, even if arguendo the Perrys met all the other estoppel elements, the requested equitable relief is unwarranted because the injustice of inclusion of the Property within the RSO, thereby precluding its short-term rental under the HSO, is not great. Additionally, the precedent set by granting estoppel would not be narrow as it would permit other persons relying on an inaccuracy in the ZIMAS website to avoid the RSO. See Golden Gate Water Ski Club v. County of Contra Costa, supra, (2008) 165 Cal. App. 4th at 250.

The Petition is denied. The City’s counsel is ordered to prepare a proposed judgment, serve it on the Perrys’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for January 26, 2023 at 9:30 a.m.

[1] The City requests the court to judicially notice certain facts under the RSO. Opp. at 9. The City fails to comply with the requirements for judicial notice in CRC 3.1113(l). The request is denied. In any event, the pertinent RSO provisions are before the court and the City may argue their meaning without judicial notice.

[2] The City has no copy of the Property’s short-term rental Registration as it only began making registrations digital after 2008 and has discarded the earlier paper copies. Steffens Decl., ¶9.

[3] The Perrys miscite this as AR 406. Op. Br. at 7.

[4] Obviously, Garcia could not have reviewed the Perrys’ August 2022 Exemption Applications before making her RSO determination in July 2022.

[5] The City has never received a government tort claim from the Perrys or a claim regarding the Property. Novoa Decl., ¶6.

[6] For some reason, the City’s opposition discusses a void for vagueness challenge under the Fourteenth Amendment of the United States Constitution (Opp. at 5-8), as well as procedural due process (Opp. at 13), substantive due process (Op. at 13-14), and takings claims under the Fifth Amendment of the United States Constitution (Opp. at 14-15). No such claims were made in the Petition or the Perrys’ briefs.

The City also argues that declaratory relief is not an independent cause of action but a form of recovery. Opp. at 15. That is not true. The case cited by the City, McDowell v. Watson, (1997) 59 Cal. App. 4th 1155, 1159, states that injunctive relief is a remedy and does not say that declaratory relief is merely a remedy. In fact, CCP section 1060 expressly provides for a declaratory relief cause of action. Nor is the declaratory relief sought by the Perrys retrospective. The Petition seeks a declaration that the Property is exempt from the RSO and entitled to yearly renewals of its registration which is a basis for declaratory relief.

[7] In 2017, the City adopted another technical amendment to LAMC 151.02(6) to address the RSO’s application when a structure was first issued a temporary COO prior to October 1, 1978. AR 141, 156. As the Perrys argue, no temporary COO was issued for the Property. Pet. Op. Br. at 11.