Three Southern California cities have received letters threatening lawsuits if they don’t repeal eviction bans enacted to protect out-of-work or ill renters during the coronavirus pandemic.
Two of the cities — Upland and La Verne — repealed their bans after getting the letters.
But the city attorney for the third municipality, Costa Mesa, said she’s confident her city’s order is lawful.
“There’s a long line of Supreme Court decisions about the ability to make emergency orders in the interest of public health,” Costa Mesa City Attorney Kimberly Hall Barlow said in response to the threatening missive. “We do not intend to respond.”
The letters, sent by Douglas Dennington of the Costa Mesa-based law firm Rutan & Tucker, argue the eviction moratoriums amount to “a taking,” or virtual confiscation, of his clients’ rental properties. The cities either must repeal their ordinances or reimburse landlords for lost income, he argued.
“Given the magnitude of the rent loss property owners anticipate from implementation of the eviction ban, property owners will have no choice but to pursue any and all available legal relief,” Dennington’s letters said.
The letters potentially have statewide implications.
At least 148 California cities and counties have passed eviction moratoriums since March, although some since have expired or been repealed, according to the California Apartment Association. Additionally, Gov. Gavin Newsom and the state court system’s Judicial Council issued emergency orders in March and April freezing the eviction process.
Dennington declined to identify most of his clients, saying only that they include “a large number of both residential and commercial property owners of all sizes throughout the state of California.”
State and local eviction bans generally prohibit the removal of tenants from their homes for failing to pay rent either because of lost income or illness due to COVID-19. Local bans often go further than state moratoriums, banning late fees, giving tenants from two months to a year to repay back rent and forbidding the posting of three-day pay-up notices.
Some city and tenants’ rights attorneys have disputed Dennington’s claims that eviction bans run afoul of the law, including at least one member of his own law firm who acts as city attorney for the San Gabriel Valley city of Duarte.
Advising Duarte City Council members before their March 24 vote adopting a moratorium, Rutan & Tucker partner David Cosgrove said: “I don’t believe the ordinance would result in a taking.”
Another Rutan & Tucker partner, Phil Kohn, did not raise objections when the city he advises, Laguna Beach, adopted an eviction moratorium April 7.
Dennington said he is not disputing the validity of less restrictive moratoriums ordered by Newsom and the state Judicial Council.
But the “highly questionable” moratoriums in Upland, La Verne and Costa Mesa interfere with landlord-tenant contracts by giving tenants more time to pay rent, waiving late fees or prohibiting the filing of eviction notices, he said.
The municipal bans force landlords “to become involuntary lenders to their tenants,” Dennington’s letter said.
“Owners have operating expenses to pay, security that must be maintained, (and) critical engineering and maintenance staff. Where is the relief for property owners?” Dennington asked.
After getting Dennington’s letter, Upland City Council members immediately revoked their own eviction moratorium April 13, expressing concern the ban exposed the city to litigation costs.
“I don’t think it is in the city’s best interest to become part of a lawsuit,” said Councilman Bill Velto, who led the unanimous vote to repeal the ordinance.
La Verne City Manager Bob Russi said Dennington’s letter didn’t play a role in his city’s April 20 decision to repeal its moratorium. The city believes state and county moratoriums provide adequate renter protections already, he said.
But Barlow, Costa Mesa’s city attorney, said Dennington’s arguments are based on case law that doesn’t apply when there is an emergency.
“I disagree with (his) analysis,” Barlow said. “The cases are uniform in saying when the circumstances justify it and (the ordinance) is designed to address a public health emergency, which this is, then constitutional rights give way.”
Barlow argued further that landlords have other remedies besides eviction to seek damages from tenants, noting further that banks have offered mortgage relief and low-interest loans to landlords.
“There are many, many things landlords can do to protect themselves,” she said.
Tenants’ rights attorneys also disputed Dennington’s arguments, saying the law gives local government the ability to regulate evictions.Dennington’s legal reasoning is “more than a stretch,” said Craig Castellanet, an attorney with the Oakland-based Public Interest Law Project.
“It selectively cites, and largely ignores, relevant court precedent,” added Faizah Malik, staff attorney with the nonprofit Public Counsel Law Center in Los Angeles. “Cities are understandably and rightly trying to protect tenants, and keep them housed, in the context of a deadly pandemic where being unhoused could mean death.”
