Judge: James C. Chalfant, Case: 23STCV13323, Date: 2023-08-15 Tentative Ruling

Case Number: 23STCV13323    Hearing Date: August 15, 2023    Dept: 85

            Petitioner Barrington Plaza Tenant Association (“BPTA”) moves for a preliminary injunction enjoining Respondent Barrington Pacific, LLC from filing any unlawful detainer (“UD”) action for possession of any apartment unit at the Barrington Plaza apartment complex at 11728, 11734, and 11740 Wilshire Boulevard, Los Angeles, California 90025 (“Property”).

            The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

            A. Statement of the Case

            1. The Complaint

            On June 12, 2023, Plaintiff BPTA commenced this action against Barrington Pacific, LLC and Douglas Emmett, Inc. (“Emmett”) (collectively, “Landlord”), alleging declaratory and injunctive relief.  The Complaint alleges in pertinent part as follows.

            The Property was built in 1962 and has 700 apartment units.  All the units are rent stabilized under Los Angeles’ Rent Stabilization Ordinance (“RSO” (Los Angeles Municipal Code (“LAMC”) section 151.00 et seq.).  Because the buildings pre-date building code sprinkler system requirements, they have no sprinklers.  Fires in 2013 and 2020 have caused injury and death on the Property.

            On May 8, 2023, Landlord delivered 120-day eviction notices (“Notice”) to all of the tenants.  The Notice asserted that Landlord intends to permanently withdraw the units from the rental market under the Ellis Act.  On the same day, Landlord issued a press release stating that removal of the units from the market would provide an opportunity to install fire sprinklers.  The project could take several years, would cost $300 million, and requires all three towers on the Property to be empty.

            Under the RSO, a landlord can only evict for good cause.  One good cause reason is that the landlord seeks in good faith to repossess a unit with intent to either demolish it or permanently remove it from rental housing.  Despite the Notice, Landlord’s press release revealed that it does not intend to permanently remove the units from the rental market.  When Landlord filed forms with the City of Los Angeles (“City”) to explain the reason for the mass eviction, it declared that it was undecided about what to do with the Property.

            The City’s Tenant Habitability Program (LAMC §152.00 et seq), states that any time a landlord seeks to perform primary renovation work on a rent-stabilized unit, the landlord and the City must enter into a Tenant Habitability Plan (“THP”) to mitigate the impact on tenants.  This includes tenant relocation to habitable and comparable temporary housing for as long as the primary renovations and related work will make units uninhabitable.  Alternatively, the landlord and tenant can agree that the landlord will pay a certain amount for each day of displacement.

            Plaintiff BPTA seeks a judgment that Landlord does not have good cause to evict the tenants under the Ellis Act, and that it must enter into a THP and relocate the tenants to comply with the RSO.  BPTA seeks a preliminary injunction enjoining Landlord from attempting to evict the tenants under the Ellis Act.  BPTA also seeks attorney’s fees under CCP section 1021.5.

            2. Course of Proceedings

            On June 14, 2023, BPTA served Landlord with the Complaint and Summons.

            On July 13, 2023, this department denied BPTA’s ex parte application for a temporary restraining order and order to show cause re: preliminary injunction enjoining Landlord from filing unlawful detainer (“UD”) actions based on the Notice.  The court ordered BPTA to file with Department 78 (Hon. Jill Freeney) an ex parte application to specially set a hearing on a motion for a preliminary injunction. 

            On July 20, 2023, Department 78 denied BPTA’s ex parte application to specially set a hearing on a motion for a preliminary injunction. 

On July 25, 2023, this department granted BPTA’s ex parte application to specially set a hearing on a motion for a preliminary injunction for the instant date.

            B. Applicable Law

            An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court.  CCP §525.  An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act.  See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[2]  It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right.  Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

            The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial.  See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623.  The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy.  Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

            A preliminary injunction is issued after a noticed hearing.  The complaint normally must plead injunctive relief.  CCP §526(a)(1)-(2).[3]  Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief.  See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150.  Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts.  See CCP §527(a).  For this reason, a pleading alone rarely suffices.  Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007).  The burden of proof is on the plaintiff as moving party.  O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

            In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.  CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636.  Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief.  Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304.  The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.  Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

            A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction.  See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

            C. Statement of Facts[4]

            1. BPTA’s Evidence

            a. Governing Law

            The Rent Adjustment Commission (“RAC”) has promulgated Regulations (“Regs.”) 610.00 et seq. under the authority of LAMC section 151.03.  RJN Ex. 4 (RAC Reg. §610.01).  The Regulations borrow the definition of “good faith” from equity jurisdiction such that it means honestly, without fraud, collusion, or deceit, and without pretense.  RAC Reg. §610.05.  A landlord demonstrates good faith by adhering to all RSO provisions and not using the eviction process to circumvent it.  RAC Reg. §611.01.  A landlord’s intent to circumvent the RSO is inferred if the landlord has a pattern or practice of evicting tenants based on permanent removal of the units from rental housing use under LAMC §151.09(A)(10) for the purpose of selling the units, but the units continue to be used for residential rental use.  RAC Reg. §613.07.

            b. Merits

            The Property is a large three-tower apartment complex at 11740 (Tower A), 11728 (Tower B), and 11734 (Tower C) W. Wilshire Boulevard.  Gomez Decl., ¶2.  The three Towers have a total of 712 residential units, all of which are subject to RSO eviction protections.  Gomez Decl., ¶2. 

            A webpage of the City’s Planning Department (“Planning”) shows that, on April 15, 2021, Planning accepted for review an application from Michele Aronson, Emmett’s Senior Vice President.  Campbell Decl., ¶¶ 6, 8, Exs. C-D.   The application was for exterior renovations or alterations to the Property with “no change” for its proposed use.  Campbell Decl., ¶8, Ex. D.

            On May 11, 2021, the Director of Planning approved the application subject to conditions.  Campbell Decl., ¶9, Ex. E.  The plans approved on March 10, 2023 describe part of the project as the repair and modernization of interconnected Campus Fire Life Safety and MEP Systems, along with required repair and reconstruction of dwelling units and common spaces in Tower B.  Campbell Decl., ¶10, Ex. F.  The plans affirm that there will be no change of occupancy or use.  Campbell Decl., ¶10, Ex. F.

            On May 8, 2023, Landlord issued the Notice to the tenants under the Ellis Act.  Gomez Decl., ¶3, Ex. A.  The Notice stated that, because Landlord wanted to withdraw all Property units from the rental market, it would terminate all tenancies on the Property within 120 days.  Gomez Decl., ¶3, Ex. A.  The attached documents clarified that a tenant could extent this period to one year under LAMC section 151.23(C)(5) if the tenant was either disabled under Government Code (“Govt. Code”) section 12955.3 or at least 62 years old, had lived in that unit at least one year prior to the filing date for the Form E-2 for the unit, gave Landlord written notice by July 7, 2023, and continued to pay rent.  Gomez Decl., ¶3, Ex. A.

            The Notice’s attachments also stated that Landlord must offer the evicted tenant the right to return to the unit if it returns to the rental market within ten years of withdrawal.  Gomez Decl., ¶3, Ex. A.  To invoke this right, the tenant must send Landlord a written request for such an offer within 30 days of Landlord’s notice to LAHD that it will again offer the units for residential rent or lease.  Gomez Decl., ¶3, Ex. A.

            Landlord also provided a list of Relocation Assistance Amounts for different tenants.   Gomez Decl., ¶3, Ex. A.  The amount depended on both the tenant’s length of tenancy in a Property unit and whether the tenant is “Eligible,” “Qualified,” or low-income under the U.S. Department of Housing and Urban Development’s definition as of 2022.  Gomez Decl., ¶3, Ex. A. 

            Also on May 8, 2023, Landlord filed Form E-2 with LAHD.  RJN Ex. 2.  The Form E-2 was for all 712 units in the three Towers, which consist of 28 luxury exemption units and 684 RSO units.  RJN Ex. 2.  The Form E-2’s Tenant Information disclosed that over 100 units have tenants that have lived there for over a year and are either disabled or over 62 years old.  RJN Ex. 2.  Landlord marked on the Form E-2 that the future use of the Property was undecided, but that it did not need a demolition or conversion clearance.  RJN Ex. 2.  On the last page of the Form E-2, Landlord’s authorized signatory declared under penalty of perjury that it was evicting the tenants so that it could withdraw all the units from rental housing use.  RJN Ex. 2.

            On May 8, 2023, Emmett issued a press release and filed it with the SEC.  RJN Ex. 3.  The press release announced a plan to remove the Property units from the housing market.  RJN Ex. 3.  This would allow Landlord to comply with City directives to install fire sprinklers and other life safety improvements after a fire occurred in January 2020.  RJN Ex. 3.  Landlord cannot make these improvements until the tenants vacate all three Towers.  RJN Ex. 3.  The improvements will take several years and cost $300 million.  RJN Ex. 3. 

            Between May and June 2023, at least one resident from each of the three Towers gave written notice to Landlord that he or she is over 62 years old and wants to invoke their right to extend the tenancy by one year.  Abedian Decl., ¶¶ 3-6; Goral Decl., ¶¶ 3-6; Rashtiam Decl., ¶¶ 3-6.

            c. Course of Proceedings

            BPTA filed the Complaint for a declaratory judgment to invalidate the Notice.  RJN Ex. 1.  The Complaint alleges that Landlord does not intend to go out of business within the meaning of the Ellis Act or permanently withdraw the Property units from the housing market.  RJN Ex. 1. 

            After it filed the Complaint, BPTA sought to depose Landlord’s person most knowledgeable (“PMK”) to ask about Landlord’s representations to LAHD and Planning.  Campbell Decl., ¶2.  Landlord objected to the deposition notice.  Campbell Decl., ¶2, Ex. B.  BPTA attempted to contact Landlord to schedule the deposition.  Campbell Decl., ¶¶ 3-4, Ex. B.  In an email on July 5, 2023, BPTA asked if Landlord would stipulate to not file eviction actions against the tenants pending trial.  Campbell Decl., ¶4, Ex. B.  On July 7, 2023, counsel for Landlords said it expects to answer both questions in the next business day or so.  Campbell Decl., ¶5, Ex. B. 

            On July 13, 2023, this court ordered the parties to meet and confer to see if Landlord would stipulate not to file UD actions pending a hearing on a motion for a preliminary injunction.  Campbell Decl., ¶11.  On July 17, 2023, Landlord said that it would not agree to such a stipulation.   Campbell Decl., ¶12.

            Also on July 17, 2023, Landlord sent an email reminding the tenants that half of the 120-day notice period for lease termination had passed.  Gomez Decl., ¶6, Ex. G.  The email advised those tenants who already had found a new residence to give notice so that Landlord could schedule move-out and prepare relocation payments.  Gomez Decl., ¶6, Ex. G.  The email warned those tenants who had not moved out that their failure to move out by the end of the notice period could prove costly in terms of time, reputation, and money.  Gomez Decl., ¶6, Ex. G.  Landlord would require such tenants to reimburse it for any costs expended to vacate the unit, through deductions to the security deposit or relocation benefits if necessary.  Gomez Decl., ¶6, Ex. G.  Landlord still offered relocation specialists to help any tenants find a new apartment.  Gomez Decl., ¶6, Ex. G. 

2. Landlord’s Evidence

            The Property was built in 1961, when the City’s building code did not require fire sprinklers.  Yerby Decl., ¶3.  An amendment to the building code in 1974 required all subsequent high-rise residential buildings to have sprinklers, but it did not require them to be added to existing buildings.  Yerby Decl., ¶3, n. 1.  Another amendment in 1982 only required the installation of sprinklers in buildings built before 1943.  Yerby Decl., ¶3, n. 1.  The Property is therefore one of 55 high-rise residential buildings in the City that does not have, and is not required to have, sprinklers because it was built between 1943 and 1974.  Yerby Decl., ¶3, n. 1.

            Two fires in 2013 and 2020 led to one death and several injuries related to smoke exposure.  Yerby Decl., ¶¶ 4-5.  The 2020 fire also left eight floors and about 80 units damaged, red-tagged, and out-of-service.  Yerby Decl., ¶5.  This caused Landlord to decide to remove the Property from the rental market.  Yerby Decl., ¶6.

            Removal of the Property from the rental market will allow Landlord to install fire life safety improvements.  Yerby Decl., ¶17.  Landlord will install fire sprinklers, rebuild ceilings and demise walls to support the sprinkler system, build smoke barriers around elevators, rebuild stairwells to accommodate pressurization, install fire-rated walls, doors, and an exterior glass system, install upgraded utility services to support the sprinkler system, install backup generators and water tanks in case City services fail during a fire, and upgrade all existing fire life systems.  Yerby Decl., ¶17. 

            These improvements are important for safety and security of any future use for the Property, but they require the Property to be vacant.  Yerby Decl., ¶¶ 17-18.  While complications in this project render the timeline uncertain, Landlord expects that it will take over four years and cost over $300 million.  Yerby Decl., ¶18.  During this time, the Landlord will reevaluate the use of the Property.  Yerby Decl., ¶18.  It may decide to convert the Property to condominiums or sell the vacant Towers.  Yerby Decl., ¶18. 

            On May 8, 2023, Landlord submitted Form E-2 to LAHD and marked that the future use for the Property was undecided.  Yerby Decl., ¶7, Ex. A.  On the same day, it sent Notice with the requisite information to the tenants.  Yerby Decl., ¶8, Exs. B-E.

            Most tenants have until September 5, 2023 to vacate their units.  Yerby Decl., ¶9.  Tenants who are either disabled or at least 62 years old can request an extension by July 7, 2023, with the result that they must vacate by May 8, 2024.  Yerby Decl., ¶9.  Landlord may file a UD action after the applicable termination date for any tenant.  Yerby Decl., ¶9. 

            As of the date Landlord issued the Notice, 577 units were occupied, 430 through short-term leases of less than two years.  Yerby Decl., ¶11.  Fewer than 30 tenants were paying below-market rent.  Yerby Decl., ¶11.  As of August 1, 2023, tenants in 236 units have either moved out or scheduled move-out dates within the next few weeks.  Yerby Decl., ¶12.  Landlord has granted 120 eligible tenants an extension, pursuant to which they have until May 8, 2024 to move out.  Yerby Decl., ¶13.

            To date, Landlord has deposited $7,503,700 into an escrow account to pay relocation benefits based on several factors.  Yerby Decl., ¶10.  When Landlord filed the Form E-2, it also paid fees to retain a third-party relocation consultant who will determine the amount of relocation payments to each Tenant.  Yerby Decl., ¶10.  Landlord also voluntarily chose to pay for relocation consultants to work one-on-one with tenants to help them file the paperwork for relocation benefits, find and apply for new apartments, attend viewings, and secure leases.  Yerby Decl., ¶14. 

            It would be impossible to relocate every tenant at the same time.  Yerby Decl., ¶14.  The process for a tenant to move out with the help of the relocation consultants takes time.  Yerby Decl., ¶14.  The Property’s elevators also limit how many people can move out each week.  Yerby Decl., ¶14.  If Landlord cannot move forward with UD actions for a full year, it will delay the move-out process and the intended building improvements.  Yerby Decl., ¶16.  It will also prevent Landlord from focusing on assistance for the elderly and disabled tenants who have the right to move out later than everyone else.  Yerby Decl., ¶16. 

            D. Analysis

            Plaintiff BPTA applies for a preliminary injunction enjoining Landlord from filing UD actions based on the Notice.  It also proposes an alternate preliminary injunction compelling Landlord to file any such UD actions in the UD hub of the Stanley Mosk Courthouse and file notices of related cases to this case, with all of the UD cases related to Dept. 78.  Mot. at 18.

            1. Ripeness

Landlord argues that the Complaint’s allegations are is not ripe.  The Complaint presupposes that the tenants will argue Landlord’s non-compliance with the Ellis Act as a defense in the individual UD actions against them, and that they will prevail.  Id.  It also presupposes that Landlord will in fact re-lease the units after the renovations are complete.  Id.  Opp. at 17.

For a controversy to be ripe, it “must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”  Pacific Legal Foundation v. California Coastal Commission, (1982) 33 Cal.3d 158, 170.  There is a two-part test for ripeness: (1) is the dispute sufficiently concrete? and (2) what is the hardship to the parties of withholding judicial review?  Id. at 171.  A “hardship” means an “imminent and significant hardship in further delay.”  Farm Sanctuary, Inc. v. Dept. of Food & Agriculture, (1998) 63 Cal.App.4th 495, 502.

BPTA replies that the action became ripe on May 8, 2023 when the Notice was served on the tenants.  In the “Tenant Information and Frequently Asked Questions” attached to the Notice, Landlord answers the frequently asked question, “How is this legal?”, by answering that “[t]he ‘Ellis Act’ is a state law allowing landlords to remove units from the rental market” and that there is no way to stop the tenants’ relocation.  See Gomez Decl., ¶3, Ex. A, p. 13.  This is an incomplete statement of law combined with a misrepresentation that is actionable.  Therefore, the question of whether Landlord in good faith intends to remove the Property permanently from rental housing use is very much ripe for adjudication.  Reply at 11.

BPTA is correct.  As to whether the dispute is concrete, Landlord admits that, after it issued the Notice, tenants in 236 of the 577 units have either moved out or scheduled move-out dates in the next few weeks.  The dispute as to the legality of the Notice is sufficiently concrete for the remaining hundreds of tenants.

            As for the hardship of withholding review, BPTA need not wait until Landlord places units back on the market to challenge Landlord’s right to withdraw them in the first place.  After multiple years, many tenants who might otherwise have stayed will be elsewhere and either unable or unwilling to challenge Landlord’s actions.  The controversy is ripe.

            2. Standing

Landlord challenges BPTA’s standing to seek declaratory relief and a preliminary injunction.  To file an action on behalf of tenants, a tenant association must show that (1) its members have standing in their own right, (2) the interests it seeks to protect are germane to the organization’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual tenants in the lawsuit.  Apt. Assn. of Los Angeles County, Inc. v. City of Los Angeles, (2006) 136 Cal. App. 4th 119, 129 (association had standing for facial challenge to ordinance which did not require participation of any individual members). Generally, an association may sue in a representative capacity to assert a “public interest,” but it cannot sue on behalf of its members where a “private” interest or remedy is sought. Compare Residents of Beverly Glen, Inc. v. City of Los Angeles, (1973) 34 Cal.App.3d 117, 121 (corporation whose members were local residents had standing to challenge project permitted under allegedly unconstitutional ordinance), with Tenants Assn. of Park Santa Anita v. Southers, (1990) 222 Cal. App. 3d 1293, 1304 (tenants association must name individual past and present tenant members as plaintiffs to obtain individual remedy of emotional distress damages).

Landlord argues that BPTA seeks an inherently personal remedy prohibiting Landlord from filing individual UD actions against unnamed tenants about their individual apartments.  Absent naming those tenants as plaintiffs in this lawsuit, it is impossible to ascertain the scope of the requested relief and determine whether such relief is necessary or appropriate.  Should Landlord prevail on the merits, individual tenants would likely argue in any UD action that they are not bound by the decision since they were not parties.  If BPTA were to prevail, individual tenants would likely argue that Landlord is bound by that ruling in an UD action.  This is unfair to Landlord.  Opp. at 19-20.

BPTA correctly replies: “It is settled that an unincorporated association can sue in a representative capacity … to bring an action for prospective relief such as an injunction or a declaration of rights.”  Tenant Assn. of Park Santa Anita v. Southers, (1990) 222 Cal.App.3d 1293, 1302.  While BPTA has not provided evidence concerning its purpose under Apt. Assn. of Los Angeles County, Inc. v. City of Los Angeles, supra 136 Cal. App. 4th at 129, for present purposes the court may assume that BPTA exists for the very purpose of protecting the tenants from Ellis Act eviction.  BPTA has standing in a representative capacity to seek a judicial declaration that the Notice served on the tenants is invalid because Landlord lacks a good faith intent to remove the Property permanently from rental housing use.  No private individual remedy is necessary for this claim.  Reply at 12.

3. Litigation Privilege

Landlord notes that the Complaint alleges that it made bad faith statements to the SEC and the City regarding its intent to invoke the Ellis Act. See Compl., ¶¶ 10-13.  The litigation privilege protects any communications made in a judicial proceeding or “in the initiation or course of any other proceeding authorized by law” and immunizes the speaker from liability.  Civil Code §47(b).  “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.”  Silberg v. Anderson, (1990) 50 Cal. 3d 205, 212.  The litigation privilege is absolute; it applies, if at all, regardless of whether the communication was made with malice or the intent to harm.  Wise v. Thrifty Payless, Inc., (2000) 83 Cal. App. 4th 1296, 1302.  Opp. at 18-19.

Landlord argues that its challenged statements were filed with the appropriate governmental bodies as a required disclosure of intent regarding their invocation of the Ellis Act and served as necessary administrative precursors to perfect Landlord’s legal entitlement to pursue UD actions should a tenant fail to comply with the Notice.  Accordingly, Landlord’s statements to the SEC, the City, and in a “press conference” are privileged pursuant to Civil Code section 47(b).  Opp. at 18-19.

“The litigation privilege does not provide a defense to a cause of action that, by its nature, does not seek to impose tort liability for damages on a defendant based on his or her litigation related publications”.  Weeden v. Hoffman, (2021) 70 Cal.App.5th 269, 289m 290-91 (litigation privilege does not apply to quiet title claim, which is not a claim for damages and, like a true declaratory relief action, is equitable in nature).  BTPA seeks declaratory relief and injunctive relief regarding the validity of the Notice, and nothing about this claim is barred by litigation privilege. 

            4. Governing Law

a. The Ellis Act

            The Ellis Act provides that no statute, ordinance, regulation, or administrative action shall compel the owner of any residential real property to offer, or to continue to offer, accommodations in the property for rent or lease.  Govt. Code §7060(a).  A landlord who complies with the Ellis Act may therefore go out of the residential rental business by withdrawing the rental property from the market.  Drouet v. Superior Court, (“Drouet”) (2003) 31 Cal.4th 583, 587, 589.  Local public entities may impose certain procedural requirements on landlords, consistent with its provisions, to prevent abuse of the right to evict tenants.  Govt. Code §7060.7.

In withdrawing a rental property, a landlord must prove a bona fide intent to go out of business but need not show that this intent is not a retaliation for the tenant’s exercise of its statutory rights.  Drouet, supra, 31 Cal.4^th at 596.  In rejecting a requirement that the landlord disprove a retaliatory eviction under the Ellis Act, the Drouet court stated that it was unaware of any case in the country in which a retaliatory eviction defense (more accurately, retaliatory withdrawal defense) was affirmed where the landlord sought to take a building off the market.  Id.  A retaliatory eviction defense is not the only method available for a tenant to defend against a phony Ellis Act eviction.  Id. at 597.  A tenant who believes that a landlord’s invocation of the Ellis Act is phony may controvert the landlord’s statement of intent.  Id.  The landlord then has the burden of establishing his or her bona fide intent to withdraw the property from the market.  Id.  Any concern that the tenant will not be able to overcome the landlord’s secret intention to re-rent the units is diminished by the tenant’s ability to present evidence and cross-examine the landlord and by the landlord’s awareness of the consequences of re-renting in local ordinances.  Id. at 598.[5]

b. The RSO

On May 1, 1979, the City passed the RSO.  The RSO’s declaration of purpose stated that substantial numbers of renters have been unable to find decent, safe, and sanitary housing at affordable rent levels and the attempts of renters to pay increased rents often means reduced spending on other necessities.  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.  LAMC §151.01.

            LAHD, formerly the Los Angeles Housing and Community Investment Department, is the department responsible for enforcement of the RSO.  LAMC §151.02; LAAC §§ 22.600, 22.601(k).  The RSO authorizes the RAC to issue orders and promulgate policies, rules, and regulations to effectuate the RSO’s purposes.  LAMC §151.03(B). 

            Under the RSO, a landlord may terminate a tenancy only for a just cause listed in LAMC § 151.09(A).  As relevant here, a “just cause” includes when “[t]he landlord seeks in good faith to recover possession of [a] rental unit . . . to remove the rental unit permanently from rental housing use,” under the Ellis Act (Govt. Code §7060 et seq.).  LAMC §151.09(A)(10).  The phrase “in good faith” under the RSO “simply means honestly; without fraud, collusion or deceit; really, actually, without pretense.”  RJN Ex. 4.  “Thus, the section establishes a standard of care or duty owed by the landlord to the tenant—i.e., that the landlord act in good faith in evicting under this section.”  Castillo v. Friedman, (1987) 197 Cal.App.3d Supp. 6, 15 (discussing good faith requirement where landlord seeks to recover possession of unit for use and occupancy by landlord or landlord’s family members).

            The landlord must comply with the procedures in LAMC section 151.22 et seq., which includes filing papers with LAHD (LAMC §151.23) and notifying the tenant that the property will be withdrawn from rental housing.  LAMC §151.23.C.  The notice must be as described in Civil Code section 1946 or CCP sections 1161 and 1161a.  Id.

            c. The Parties’ Interpretations of the Ellis Act and RSO

            BPTA argues that the purpose of the Ellis Act is to allow a landlord to “go out of business” or “quit[ ] the rental business.” Govt. Code §7060.7; Reidy v. City and County of San Francisco, (2004) 123 Cal.App.4th 580, 592 (city cannot compel hotel owner to comply with sprinkler ordinance after Ellis Act filing).  LAMC section 151.09.A(10) provides that a landlord may evict tenants under the Ellis Act if it in good faith intends to remove the rental unit permanently from rental housing use.  Landlord must show an intent to permanently remove the unit from rental in any UD action it files.  See Drouet, supra, 31 Cal.4th at 597.   

BPTA contends that the Ellis Act is not intended to allow landlords to dispossess tenants temporarily while the landlord makes repairs.  If the Ellis Act could be interpreted to allow landlords to evict tenants only temporarily while they are remodeling their buildings, it would undermine rent stabilization in California.  Remodeling, even necessary remodeling, is not “going out of business.”  In fact, remodeling most often occurs when the landlord intends to remain in the landlord business.  Even now Landlord refuses to state that it intends to permanently remove the Property from rental housing use.  Reply at 4.

This is not to say that Landlord should not remodel or make life-safety improvements to the Property.  But to do so, Landlord is required to comply with the City’s Tenant Habitability Program (LAMC §152.00 et seq.) and provide comparable alternative housing during the renovation period.  LAMC §§ 152.02, 152.03, 152.06.  The purpose of the Tenant Habitability Program is to “facilitate landlord investment in Primary Renovation Work without subjecting tenants to … forced permanent displacement.”  LAMC §152.01 (Declaration of Purpose).  Reply at 5.

Landlord responds that the Property will be removed from the rental market for many years, and the future use of the units remains uncertain.  Yerby Decl., ¶¶17-18.  BPPTA’s speculation that Landlord might return the Property to rental use at some indefinite time in the future has no bearing on its good faith intent in removing the Property from the rental market now.  The Ellis Act does not require an intent to remove property from the rental market; it prohibits an owner from displacing existing tenants and then promptly re-renting the property.  See Drouet, supra, 31 Cal. 4th at 599-600.  Opp. at 14.

Landlord contends (Opp. at 14) that BPTA misinterprets LAMC section 151.09.A(10) to mean that Landlord must intend to remove the units from the rental market permanently.  LAMC section 151.09.A(10) was enacted before the Ellis Act.  In any event, the RSO’s reference to removing property “permanently” from rental use may be disregarded as unrealistic.  See Zimmerman v. Stotter, (“Zimmerman”) (1984) 160 Cal. App. 3d 1067, 1080, n.13.  Rather, a RSO provision calling for permanent removal must be interpreted to mean for “a reasonable time”.  Id. at 1079.  Rent control ordinances were not intended to preclude a landlord from ever returning former rental property to the rental market.  Id.  In Zimmerman, the facts supported a reasonable time as “an approximate time span of one year from the date of receipt of possession.”  Id. at 1079-80.  See also Daro, supra, 151 Cal. App. 4th at 1079, 1097 (while a local government may regulate a property’s use after it is withdrawn from the rental market, it may not condition the landlord’s right to go out of business on compliance with local land use regulations relating to the future use of the property). 

Landlord adds that an interpretation of the RSO to require a landlord to intend to remove property from the rental market in perpetuity is inconsistent with the Ellis Act and LAMC sections 151.22-151.28, both of which expressly contemplate return of property to the rental market after two years, five years, and ten years.  See Govt. Code § 7060.2; LAMC §§ 151.22- 151.28.  Given that the anticipated construction project will take for over four years, Landlord easily satisfies the intent requirement in the RSO.  Opp. at 14-15.

BPTA replies that Zimmerman is not good authority for interpreting the Ellis Act or the RSO since it was decided before the Ellis Act was passed in 1985, and the eviction in Zimmerman was for the purpose of allowing the owner and her son to move into the tenant’s unit under LAMC section 151.09.A (8), not A(10).  Zimmerman held that a landlord, though having a good faith intent at the time of eviction to remove a rental unit permanently from the rental market might nevertheless later in good faith determine that it is not feasible to carry out that declared intention.  See 160 Cal.App.3d at 1079.  It does not stand for the proposition that a landlord may evict a tenant to remove the rental unit permanently from the rental market with no good faith intent to actually do so.  See id.  Reply at 9-10.

BPTA finally argues that interpreting the RSO to require an intent to remove property from the rental market in perpetuity is consistent with its plain language and not inconsistent with the Ellis Act.  The Ellis Act was passed so landlords could exit the residential rental business without interference from the local government.  Govt. Code §7060.7.  The Ellis Act is consistent with an LAMC requirement that a landlord must intend in good faith to remove its units permanently from the rental housing market when it serves its Ellis Act eviction notice. The fact that the City has passed ordinances that regulate when and how a landlord can return his “Ellised” rental units to the rental market does not undermine the idea that the landlord must initially intend to quit the rental business. As recognized in Zimmerman, a landlord might decide that, notwithstanding that her earlier true intent to permanently withdraw her units from the rental market, she might later determine in good faith that it is the better course to re-rent the withdrawn units.  160 Cal.App.3d at 1079.  Reply at 10.

The Ellis Act does not require a landlord to intend to permanently remove a unit from the rental market.  It only requires a bona fide intent to withdraw the property from the market.  Drouet, supra, 31 Cal.4^th at 600.  The duration of the landlord’s intent to withdraw at the time of doing so and its impact on good faith are issues of fact.  BPTA may be correct that an intent to withdraw simply to renovate and re-rent is not bona fide.  On the other hand, an intent to withdraw and repair without any existing plan to re-rent may suffice.  This is a fact to be determined on a case-by-case basis.[6]

Similarly, the RSO does not require an intent to permanently remove a unit.  While Zimmerman concerned a different RSO subdivision, LAMC §151.09.A(8), the case’s discussion of the word “permanently” cites to both subdivisions A(8) and A(10) and discusses the intention “for removing the property from the rental market” per LAMC section 151.09(A)(10).  160 Cal. App. 3d at 1079.  The word “permanently” never actually appears in LAMC section 151.09.A(8), and there is no reason for the Zimmerman court to analyze the word except with reference to LAMC section 151.09.A(10).  While the holding is as BPTA describes, it is persuasive authority that the word “permanently” in LAMC section 151.09.A(10) cannot be taken literally.  Finally, the fact that Zimmerman was decided before the Ellis Act was passed has no bearing on the RSO’s interpretation.  The Ellis Act does not require permanent removal of a unit from the market and it therefore would not alter an interpretation of LAMC section 151.09.A(10) to the same effect.[7]

            d. Application

BPTA argues that it is likely to prevail in this action.  BPTA does not dispute that Landlord has followed all procedural steps under the Ellis Act to terminate tenant leases on the Property.  Yerby Decl., ¶¶ 7-8, Exs. A-E.  BPTA asserts that, although Landlord bases termination on LAMC section 151.09(A)(10), it does not seek to “go out of business” or permanently take the residential units off the rental market as required.  Mot. at 14-15.

            BPTA notes that the Notice states that the rental units are being withdrawn from the market under the Ellis Act.  Gomez Decl., Ex. A.  Emmett’s press release stated that Landlord wanted tenants to vacate the Property so that it could install fire sprinklers and other life safety improvements after a fire in January 2020 and that Landlord cannot make these improvements until the tenants vacate all three Towers.  RJN Ex. 3. 

The application and the approved plans for the renovation filed with Planning show that the Property’s use as rental units will not change.  RJN Ex. 2; Campbell Decl., Exs. D-F.  The application states that Landlord plans to renovate the units, not demolish them.  Campbell Decl., Ex. D.  The approved plans affirm that there will be no change of occupancy or use.  Campbell Decl., ¶10, Ex. F.  Even the Form E-2 Landlord filed to withdraw the units from the rental market said that the future use is “undecided.”  RJN Ex. 2.  BPTA believes that Landlord plans to renovate, repair, remodel, and re-rent.  Therefore, Landlord does not intend to permanently remove the units from the market.  Mot. at 15.

Landlord presents evidence is that the 2020 fire prompted it to exit the rental market.  Yerby Decl., ¶¶ 5-6.  The apartments experienced a fire in 2013, leading to claims of injuries from smoke exposure, and another fire in January 2020, resulting in a death. Yerby Decl., ¶¶ 4-5.  Eight damaged floors consisting of approximately 80 units were red-tagged and placed out of service.  Id., ¶5.  On May 8, 2023, Landlord initiated the process for removing the apartments from the rental market under the Ellis Act by filing and serving the Notice.  Id., ¶¶ 7-8, Exs. A-E.  Under the Ellis Act and the RSO, tenants have until September 5, 2023 to vacate the apartments or, in the case of elderly and disabled tenants, until May 2024.  Each tenant will receive relocation compensation which, to date, totals over $7.5 million.  Id., ¶¶ 9-10.  In addition, Landlord has retained professional relocation consultants to assist tenants with finding new apartments, submitting applications, attending viewings, and securing leases.  Id., ¶14. 

Landlord denies that the planned renovations reflect an intent to return to the rental market afterwards.  The renovations are important for safety and security of any future use for the Property, but they require that the Property be vacant. Yerby Decl., ¶17.  The renovations will make the Property less susceptible to fire damage and Landlord expects they will take four years.  Yerby Decl., ¶¶ 17-18.  Landlord will reevaluate the use of the Property while it performs the renovations.  Yerby Decl., ¶18.  Landlord’s options for use of the units, without demolition, include returning them to the rental market, selling them as condominiums, or selling the vacant buildings.  Yerby Decl., ¶18.  This is why the Form E-2 says the future use is undecided.  RJN Ex. 2.  Opp. at 9-10.

As stated ante, Landlord’s bona fide intent to withdraw the property, including the length of intended withdrawal and whether it intends to re-rent, is a question of fact.  Drouet, supra, 31 Cal.4^th at 600.  At this stage, BPTA’s evidence does not refute Landlord’s good faith intent to withdraw the units.  Although the press release states that Landlord removed the Property from the rental market because the renovations were otherwise impossible, it says nothing about what would happen after the renovations.  See RJN Ex. 3.  Ultimately, this is an issue to be decided at trial.

            5. Adequate Remedy at Law

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law.  CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.  The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff.  Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.  “The rule in this state is that injunctive and declaratory relief will not be granted where there is a plain, complete, speedy, and adequate remedy at law.”  Rickley v. County of Los Angeles, (“Rickley”) (2004) 114 Cal. App. 4th 1002, 1013 (citation omitted)).

Landlord makes a compelling argument that the tenants have two legal remedies that will adequately protect them from an Ellis Act violation without a preliminary injunction: (1) the remedies set forth in the Ellis Act and the RSO, and (2) the opportunity to present their defenses in a UD action.  

Both the Ellis Act and the RSO specify remedies for improper removal of rent-controlled units from the rental market. Displaced tenants receive rental priority if the property is returned to the rental market within ten years, must be offered a unit at rent-controlled rates if the re-rental occurs within five years, and are entitled to compensatory and punitive damages if the units are returned within two years.  See Govt. Code §7060.2; LAMC §§ 151.25-151.27.  In addition, tenants are entitled to relocation payments under the RSO ranging from $9,200 to $22,950 to “mitigate any adverse impact . . . by reason of the withdrawal from rent or lease of any accommodations.”  LAMC §§ 151.06(D), 151.09(G); see Govt. Code §7060.1(c).  Opp. at 15-16.

The Legislature and the City Council enacted these remedies to protect displaced tenants from fraudulent removals of property from the rental market.  The Ellis Act preempts any local ordinance preventing a landlord from removing their property from the market.  City of Santa Monica v. Yarmark, (1988) 203 Cal. App. 3d 153, 165.  However, “[c]oncerned about the possible adverse effect on rent control ordinances, the Legislature included provisions to insure against the removal of rental units for the sole purpose of circumventing rent control ordinances by, e.g., subjecting withdrawn accommodations to rent control if offered again for residential purposes.”.  Id. at 168 (citing Govt. Code §7060.2).  Additionally, the City enacted the RSO “to protect tenants from being displaced and losing their affordable rents”.  L.A. Ord. No. 177901, §14 (enacting the RSO).  These remedies are adequate to protect against any alleged bad-faith removals of property from the rental market.  See, e.g., Small Property Owners, supra, 22 Cal. App. 5th at 89, n. 11 (noting “the substantial protections provided by the Ellis Act and the [local administrative code] to tenants who are evicted under the Ellis Act”).  Opp. at 16.

Second, a tenant who refuses to vacate will have the opportunity to raise their defenses in a UD action before they are evicted.  The tenant will have a full and fair opportunity to have their arguments heard in the UD process.  Only if the UD court determines that the tenant’s defense lacks merit will the tenant be evicted. The tenants therefore have an adequate remedy of raising their defenses in the UD action.  See Rickley, supra, 114 Cal. App. 4th at 1013 (“The rule in this state is that injunctive and declaratory relief will not be granted where there is a plain, complete, speedy, and adequate remedy at law.” (quoted source omitted)).  Opp. at 16.

BPTA replies that the right to be sued in and defend a frivolous UD action is not an adequate remedy at law, and neither is the future right to sue Landlord. The legal remedy of damages is generally inadequate in all agreements for the sale or letting of land.  Wilkison v. Wiederkehr, (2002) 101 Cal.App.4th 822, 830.  Reply at 11.

Not so.  In setting aside a local ordinance that protected tenants by imposing a ten-year waiting period before the unit could be renovated, Small Property Owners expressly stated that there are extensive protections provided to tenants by the Ellis Act and local rent control ordinances against bad-faith removals of property from the rental market are sufficient.  See San Francisco, supra, 22 Cal. App. 5th at 89, n. 11.  These protections provide BPTA’s tenants with adequate legal remedies.   BPTA’s implicit point is that the tenants will be unable to defend themselves in individual UD actions with the same attorney power and vigor that they have in this representative action.  This is an issue of case management, not injunctive relief, and is addressed post.

            6. Access to Court

At the July 13, 2023 ex parte hearing, the court indicated that it is loath to enjoin any party from filing a lawsuit because access to court is a First Amendment right.

Landlord agrees and argues that BPTA’s requested injunction violates Landlord’s constitutional right to access the courts by initiating UD actions to recover possession of their property.  “The First Amendment to the United States Constitution protects the right ‘to petition the Government for a redress of grievances,’ which includes the right of access to the courts.”  City of Norco v. Mugar, (2020) 59 Cal. App. 5th 786, 797-98 (quoting California Transport v. Trucking Ulimited, (1972) 404 U.S. 508, 513. The California Constitution likewise protects property owners’ right to court access.  See Cal. Const. art. I, § 3(a) (guaranteeing the right to “petition the government for redress of grievances”); Jersey v. John Muir Med. Ctr., (2002) 97 Cal. App. 4th 814, 821 (access to the courts is “a right guaranteed to all persons by the federal and state Constitutions”). Specifically, the prosecution of an unlawful detainer action indisputably is First Amendment protected activity.  See Birkner v. Lam, (2007) 156 Cal. App. 4th 275, 281 (landlord’s service of tenancy termination notices constituted acts in furtherance of protected petitioning under anti-SLAPP statute).  Opp. at 10-11.

The primary case on which BPTA relies (Mot. at 15-16), Hernandez v. Stabach, (“Hernandez”) (1983) 145 Cal. App. 3d 309, does not conclude otherwise.  The plaintiffs in Hernandez filed a class action contending that the apartment complex in which they were tenants was uninhabitable due to roach and vermin infestation and disrepair.  Id. at 312.  They sought and obtained a preliminary injunction that prohibited the landlord from evicting a tenant for retaliatory purposes without prior court approval.  Id. at 312.  The plaintiffs did not seek to prohibit the landlord from filing UD actions, or even from obtaining UD judgments; they only sought to prevent their eviction without the court’s consent.  In contrast, BPTA seeks to prevent Landlord from even filing UD actions. 

BPTA believes that the court has the power to enjoin Landlord from filing UD actions under the authority provided by Hernandez, and that an order staying already-filed unlawful detainer actions is equivalent to an order enjoining the filings in the first place.  Reply at 8. 

The court does not agree.  While the court may have authority to enjoin the filing of UD actions – BPTA does not articulate the criteria which should be evaluated when a court does soo -- there is a significant difference between enjoining the eviction of a tenant who has filed a lawsuit about habitability without court approval (Hernandez) and enjoining a landlord from filing a UD action to obtain a judgment of eviction, which necessarily involves court approval.

The other cases cited by BPTA (Mot. at 17—18) concern the oft-found circumstance of a plaintiff tenant filing suit against a defendant landlord who has filed a UD action against the tenant.  In that circumstance, a court may consider staying the UD action for the sake of judicial efficiency to avoid multiple suits involving the same parties and same controversy.  See e.g., Asuncion v. Super. Ct., (1980) 108 Cal. App. 3d 141, 146 (1980) (suggesting possibility of stay or consolidation of pending eviction action where a related fraud action was pending).  Landlord is entitled to access the courts by filing UD actions. 

BPTA argues that it is doing nothing to limit Landlord’s access to the courts because Landlord may prove its intent to permanently remove the Property from the rental housing market in this declaratory relief case.[8]  The fact that Landlord would prefer to litigate the question of its good faith in hundreds of summary UD actions rather than this single declaratory relief case suggests that Landlord anticipates an advantage in which hundreds of individual tenants will be afraid or financially unable to go to court and will be unrepresented, as well as that they are likely to win at least some of the UD cases.  Landlord can invoke its right to access the courts by “cross-complain[ing] against the tenants for declaratory relief and ejectment based on their invocation of the Ellis Act.” Daro, supra, 151 Cal.App.4th at 1089 (in tenants unfair competition lawsuit, landlord cross-complained for declaratory relief under the Ellis Act; court held that tenants lacked standing to stop Ellis Act withdrawal based on a violation of Subdivision Map Act).  BPTA adds that the fact that the process will be slower in the declaratory relief case than in UD actions does not necessarily deny Landlord access to court.  “The present threat to the summary nature of unlawful detainer proceedings … must be balanced against the more important interest of vindicating statutory public policy…..Our courts were never intended to serve as rubber stamps for landlords seeking to evict their tenants, but rather to see that justice be done before a man is evicted from his home.”  Pernell v. Southall Realty, (1974) 416 U.S. 363, 385.  Reply at 8.

BPTA seeks to control how Landlord accesses the courts by requiring it to cross-claim in this lawsuit.  Neither party presents appellate authority on specific criteria to be evaluated before imposing an injunction against a party filing a lawsuit.  The court will not conclude that Landlord’s access rights are adequately protected by being compelled to cross-complain in this lawsuit.

In any event, the issues raised by BPTA are primarily case management issues: whether there should be a single case, multiple cases that are related, or some other case management method.  These issues can be better addressed in another manner.  See post.

            7. Balance of Hardships

            The second factor which a trial court examines is the interim harm that plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.  Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177.  This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.  Id.

            a. BPTA’s Harm

BPTA argues that the tenants will suffer harm if a preliminary injunction is not issued based on the general principal that damages are an inadequate remedy for unlawful eviction.  “The hardship, if any, to defendant in requiring him to show that his desire to evict someone is motivated by a legitimate reason is insignificant when compared to the irreparable harm plaintiffs will suffer if they are required to defend a multiplicity of lawsuits or are evicted.” Hernandez, supra, 145 Cal.App.3d at 309, 315, 317 (affirming the grant of preliminary injunction enjoining defendants from initiating unlawful detainer action without leave of court). California law recognizes that transfers of interests in real property “cannot be adequately relieved by pecuniary compensation.” Civil Code §3387.  Courts have applied that same principle in holding that a tenant does not have an adequate remedy at law when being displaced from rental property. Kaufman v. Goldman, (2011) 195 Cal.App.4th 734, 742-44.  Mot. at 15-16.

Landlord asserts that the harm to tenants if a preliminary injunction is denied is minimal because of the adequate remedies at law discussed ante.  Opp. at 15-16.  Specifically, the tenant can raise Landlord’s lack of a bona fide intent in a UD action.  Additionally, if, after eviction, Landlord re-rents the units, the displaced tenants will have rental priority if the property is returned to the rental market within ten years, must be offered a unit at rent-controlled rates if the re-rental occurs within five years, and are entitled to compensatory and punitive damages if the units are returned within two years.  See Govt. Code §7060.2; LAMC §§ 151.25-151.27.  In addition, tenants are entitled to relocation payments ranging from $9,200 to $22,950 for their Ellis Act eviction.  LAMC §§ 151.06(D), 151.09(G); see Govt. Code §7060.1(c).  Opp. at 15-16.

            While generally the eviction of a tenant is a serious harm, Landlord is correct that the evictions will not occur without a UD action against each tenant.  They also have the other remedies referred to by Landlord.  These are adequate remedies at law. 

This is particularly true because the Complaint alleges, and BPTA admits, that the tenants will have to leave their units for some period of years no matter what happens.  BPTA seeks the Landlord’s compliance with the City’s Tenant Habitability Program (LAMC §152.00 et seq.) to provide comparable alternative housing during the renovation period.  LAMC §§ 152.02, 152.03, 152.06.  Thus, the issue is whether the tenants are evicted with relocation benefits or are moved to other apartments under a THP.  There are differences between the two, and tenants may prefer to have Landlord relocate them to comparable units.  But either way the tenants will have to move, and this fact undermines the tenant harm from displacement.

            b. Landlord’s Harm

            Landlord asserts that a preliminary injunction would harm its efforts to relocate all tenants.  Opp. at 20.  The tenants must move out by September 2023 with the exception of tenants who are disabled or over 62 years old, and they have until May 8, 2024.  Yerby Decl., ¶¶ 9, 13.  Landlord chose to pay for relocation consultants to work one-on-one with Tenants to find new apartments.  Yerby Decl., ¶14.

Landlord argues that it needs to move forward with the process, and it would be impossible to relocate every tenant at the same time.  Yerby Decl., ¶14. The process to move out with the help of the relocation consultants takes time for each tenant.  Yerby Decl., ¶14.  The current eviction schedule staggers relocation efforts because some tenants must move out sooner than others.  As a practical matter, the elevator service at the Property limits the number of tenants who may move out during any given week—a process that will be drawn out if all tenants attempt to move out at the same time a year from now.  Yerby Decl., ¶¶ 14-16.  If Landlord cannot move forward with any UD proceedings for a year, the relocation consultants cannot focus on helping the elderly and disabled tenants who have the right to move out later than everyone else.  Yerby Decl., ¶16.

BPTA asserts that Landlord will not be harmed if they are enjoined from filing UD actions because the tenants will continue to pay rent to Landlord’s benefit.  Landlord’s complaint that it is “impossible to relocate over 500 units at once”, but that is not Landlord’s responsibility under the Ellis Act.  Landlord would only have that responsibility if it gave up its Ellis Act eviction plan and complied with the Tenant Habitability Program, which would allow Landlord to undertake renovation work and “recover a substantial portion of the renovation costs” while preserving the tenancies.  LAMC §152.01.  Under the Tenant Habitability Program, tenants may elect to receive permanent relocation assistance rather than be temporarily relocated, but this would be their choice.  LAMC 152.05.  Landlord cannot begin the renovations for at least a year because there are elderly or disabled tenants in each residential Tower and it provides no competent evidence that all three Towers must be vacant before it can engage in repairs and remodeling of any particular building.  Mot. at 16; Reply at 12-13.

            While BPTA makes fair points, Landlord has consistently stated that it cannot proceed with the renovations until every tenant has moved out.  RJN Ex. 3; Yerby Decl., ¶¶ 17-18.  Allowing the tenants to stay longer with Landlord unable to file UD actions will delay the move-out process and the intended improvements.  Yerby Decl., ¶16.  BPTA is correct, however, that it is unclear just how long the delay would be and what the delay would cost Landlord.

            c. Conclusion

            The tenants’ harm in having to defend individual UD actions and face eviction are significant.  However, these harms are undermined by their adequate legal remedies under the Ellis Act and RSO and the fact that they will have to move out of their units anyway.  Landlord’s harm results from denial of access to court as well as the economic harm of delay in asserting its statutory right to evict and performing its planned renovation.  Particularly in light of the case management discussed below, the balance of hardships favors Landlord.

8. Case Management

BPTA argues that, if the court is not inclined to enjoin the filing of the unlawful detainer actions, the court should order pursuant to CCP section 128 that (1) Landlord file all Ellis Act UD actions against the tenants in the UD Hub of the Stanley Mosk Courthouse rather than the UD Hub of the Santa Monica Court, (2) Landlord file a notice of related case with each of the UD actions, and (3) all the cases be transferred to Department 78 and related to this case for adjudication of the question asked in this case: Are Defendants in good faith intending to go out of the residential rental business at Property within the meaning of the Ellis Act and the RSO?  Mot. at 18.

Landlord responds that this request is blatant forum shopping. The tenants in over 230 units have or will move out by September 2023, and tenants in 120 units have been granted an extension to stay at the building until May 2024. Yerby Decl. ¶¶ 11-13.  Defendants anticipate that more tenants will move out in the next month, avoiding the need for many UD actions.  Without identifying the tenants that BPTA represents, and the tenants who actually raise an Ellis Act defense in the UD actions, it is premature to determine whether any UD actions should be related to this action.  See CRC 3.300(a); LASC R. 3.3(f).  Opp. at 21.

Additionally, cases may be consolidated only if they involve a common question of law or fact and are pending before the same court.  CCP §1048(a); CRC 3.350; LASC 3.3(g).  Consolidation is premature and inappropriate because the UD actions have not been filed and will involve different parties and different apartments, with individualized issues such as any rent amounts owed.  Moreover, consolidation would deprive Landlord of the expedited adjudication of issues provided by the UD statutes.  Opp. at 21.

BPTA replies that it is not forum shopping.  If the court finds it more expedient to transfer this action to the Santa Monica Courthouse so that the UD actions can be related and consolidated there, that would be acceptable.  BPTA’s only aim is to have this entire dispute supervised by a single judge because the UD actions will involve the same parties and be based on the same claims, will arise from the same transactions, and will require determination of the same question of fact.  Reply at 13.

The court agrees that this case and any UD actions probably should be related and heard in the same court.  It is unknown at this time how many UD actions there will be.  At a minimum, the UD actions themselves should be related.  Pursuant to LASC Rule 2.8(a)(2)(A), the court believes that the UD actions must be filed in the Santa Monica Courthouse.  The instant unlimited declaratory relief action also could have been filed in the Santa Monica Courthouse.  LASC Rule 2.8(a)(1)(B). 

The court does not have authority to transfer this case from Dept. 78 to the Santa Monica Courthouse, but it has inquired of Dept. 1 about that issue.  If Dept. 1 does not do so, BPTA can move for transfer of this cases under LASC Rule 2.3(b)(2).  Alternatively, Dept. 78 may relate the UD cases.   Whether or not a single court has the declaratory relief case and the UD actions, the UD actions filed in the Santa Monica Courthouse all should be related and potentially consolidated.  Depending on how many UD cases there are, one or more of them can be tried as test cases.  

E. Conclusion

The motion for a preliminary injunction is denied.  The court directs that the UD actions all be filed in the Santa Monica Courthouse where they can be coordinated to ease the burden on the court and parties.  Landlord is directed to file related case notices with the UD actions, and the notices shall refer to the declaratory relief case and all other UD actions on file.  BPTA may move to transfer the instant case to Santa Monica under LASC Rule 2.3(b)(2).