Eviction Protection: Santa Monica City Council to Consider a Solution in Search of a Problem

I am writing in opposition to Item 5G ("Discussion of Potential Resolution for Charter Amendments for Additional Tenant Protections") on the Agenda for the February 13 meeting of the Santa Monica City Council, l and any proposal to adopt by Initiative, Ordinance or otherwise any proposal to condition eviction for nonpayment of rent on the nonpayment of any more than the rent that is past due, which in the case of a month-to-month tenancy would ordinarily be one month's rent. This proposal is unconstitutional, invalid, unenforceable, unwise, harmful to renters, unnecessarily antagonistic towards landlords, and there is no evidence that it would serve any useful purpose.

1. A MUNICIPAL LAW ENLARGING THE PERIOD OF NONPAYMENT OF RENT REQUIRED FOR EVICTION WOULD VIOLATE THE CALIFORNIA CONSTITUTION.

The California Constitution prevails over Council members' policy preferences. Municipal laws, however enacted, and City Council's powers are "subject ... to such restrictions and limitations as may be provided in [the Charter of the City of Santa Monica] and in the Constitution of the State of California." Charter of the City of Santa Monica, Section 400. See California Constitution, Article XI, Section 5. Each Council member has "solemnly sw[orn]" [to] support ... the Constitution of the State of California...."

The Council may not lawfully implement an Initiative that violates Section 400 of the Charter and Article XI, Section 7's prohibition of local laws that expressly contradict state law.

"Under article XI, section 7 of the California Constitution, a county or city may make and enforce within its limits all local, police, sanitary and other regulations not in conflict with general laws. If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void. A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication .... Local legislation is 'duplicative' of general law when it is coextensive therewith .... Similarly, local legislation is 'contradictory' to general law when it is inimical thereto."

San Diego Gas & Electric Co. v. City of Carlsbad, 64 Cal. App. 4th 785, 792-793 (1998)(emphasis added).

Santa Monica renters are overwhelmingly on month to month tenancies with their rent payable on a monthly basis. See Civil Code Section 1944. The Santa Monica Charter expressly protects the rights of landlords to evict a tenant when the monthly rent is not paid. That is why Caroline's proposed change can only be made by amending the City Charter.

The problem is that state law is exactly the same as the Charter when it authorizes eviction when any amount of rent is past due. The California procedures governing eviction proceedings are contained in the Code of Civil Procedure. Section 1161 authorizes eviction or tenants "after default in the payment of rent." That is the same criteria as is currently protected by the Charter (see footnote 1), so if the Initiative contradicts the Charter - which is why amending the Charter by Initiative is required, then it contradicts state law and is therefore not permissible under Article XI, Section 7 of the California Constitution.

2. THE PROPOSED INITIATIVE IS AN UNCONSTITUTIONAL REGULATORY TAKING WITHOUT JUST COMPENSATION.

The U.S. Constitution (5th Amendment) and State Constitution (Article 1, Section 19) both prohibit government takings of private property without just compensation. One property right protected by the ownership of private property is the right to exclude others. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021). The City obviously could not require homeowners to house homeless people against their will, even if this would help solve a substantial problem. Likewise, a landlord's consent to a tenant occupying their property is conditioned on the tenant paying rent. If that condition is not met, the tenant is occupying the landlord's private property without their consent. They are trespassing. Therefore, unless government pays just compensation for denying a landlord's right to exclude others from their property, a landlord cannot be compelled to house a tenant who has failed to pay rent. Caroline's proposal not only would be unconstitutional, it would subject tenants to litigation over this issue and the City (and its taxpayers) to substantial claims from landlords for payment of just compensation.

In Loreto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the U.S. Supreme Court held that the occupation of a very small portion a property owner's property authorized by the government was a "taking" unlawful unless the government paid just compensation. In Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), the Court held that government cannot force a property owner to grant even temporary access to a union whose workers worked on the property. Currently, the Court has devoted numerous conferences indicating it is likely to review a government rule requiring landlords to house tenants following the expiration of the term of their lease. 74 Pinehurst LLC v. New York. (https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-1130.html)

Adopting a law requiring a property owner to house a tenant without paying rent would subject the City to an enormous liability for just compensation. Violating property owners' Constitutional property rights would also subject Council members personally to potential civil and criminal liability. 42 U.S.C. 1983; 18 U.S.C. 242. If the California courts finally conclude that Council members were not lawfully elected, they would not be entitled to indemnification or a defense from the City. The Pacific Legal Foundation and other attorneys are closely watching what the City Council does, so it should be very careful when risking an enormous municipal and personal liability ... all in an unlawful effort that will confer no benefits to tenants.

3. THE PROPOSED INITIATIVE WILL CAUSE ADDITIONAL RENTERS TO BE EVICTED.

There is already a state initiative on the November ballot to repeal Costa Hawkins. That encourages landlords throughout the state to evict tenants before the possible repeal of Costa Hawkins so they can raise the rent before the effective date of any new legislation made possible by such repeal. The City's proposed initiative will further encourage landlords whose tenants are behind by one month's rent to evict them now before more than one month's rent may have to be delinquent to evict. Two-thirds of the tenants in my building are at least a month behind in their rent, other landlords are in the same situation, and if this initiative in placed on the November ballot I and other Santa Monica landlords will not hesitate to evict them now.

While tenants have many rights and protections, rental income is about the only benefit to a landlord. Taking away their statutory right under state law to evict a tenant delinquent in one month's rent rent will simply add to the animosity between landlords and tenants caused by government commandeering all aspects of the landlord tenant relationship. This initiative is just another reason for landlords to keep their units vacant or Ellis their property and reduce the number of rental units in the city. Such a rule would further discourage investors from building new rental housing in the City of Santa Monica.

Moreover, some tenants may seek to take advantage of this Initiative if enacted and become delinquent by more than a month's rent. Those tenants may learn the hard way through expensive litigation and being evicted that the benefits of the Initiative are unlawful, invalid and unenforceable. While the outcome of such litigation would be clear in this case, as the Council is seeing in the pending elections litigation, one can lose in the trial court, win in the Court of Appeal, have that victory reversed by the Supreme Court, and find yourself back in front of the trial court for another review and decision, which can then be appealed anew. Tenants do not have the resources for such litigation.

4. THE INITIATIVE SERVES NO PURPOSE OTHER THAN TO FACILITATE CAROLINE TOROSIS'S POLITICAL AMBITIONS.

Caroline Torosis is spearheading this Initiative solely to further her political career. Caroline has no roots in Santa Monica. She spent her youth and high school years in the affluent area of Menlo Park. She divided her college years between Westwood (UCLA) and Paris, France (Sorbonne). Notwithstanding numerous excellent law schools in Southern California (UCLA, USC, Loyola, Southwestern), she then chose to leave California to attend law school in the midwest.

Following graduation from law school, Caroline came to Southern California to take a job taking depositions for a law firm in Cerritos. Her career in the private sector lasted seven months. She began a career 12 years ago as a staff member in County Government, working in downtown Los Angeles. After more than a decade working in Los Angeles for County government, she has risen to the position of one of 34 deputies for a County official. https://mitchell.lacounty.gov/teammitchell With a failed career in the private sector in Cerritos, and a stalled career in the public sector, in Los Angeles, Caroline decided to seek refuge and public acclaim in politics. Having asked for and received a 4-year term on the Rent Control Board, she decided to quit that position with two years left on her term (preventing her successor to be chosen by election) to move up the political ladder to the City Council. She aspires to bigger and more prominent roles in government in her future.

Political success in Santa Monica and in California greatly depends upon conferring benefits on renters. The only problem is, politicians have exhausted that field. Rent control in Santa Monica is 45 years old, and the state and local tenant protections are too numerous to count. And so Caroline has chosen to promote her public image by championing the current proposed Initiative notwithstanding its illegality, and the fact that it will hurt Santa Monica tenants, through lies and deceit. The illegality is clear, as discussed above. Here are a few instances of Caroline's deceptive self-promotion.

At the August 17 meeting of the City Council, Caroline, Gleam Davis and Jesse Zwick proposed requesting the City Attorney to draft up proposed legislation for new tenant protections, including this one. The Council agreed and the request was made, and the City Attorney worked on the proposed legislation and presented it to the Council in early 2024.

Nothing to date has been enacted. And a Charter Amendment is essential for the subjects of the proposed Initiative. Yet Caroline told her constituents last August that her proposed tenant protections had been enacted. Her headline read:

"Santa Monica City Council Establishes the Strongest Protections in the Nation to Safeguard Santa Monica Renters."

If this statement were true, if the Council met and decided this issue outside a public meeting, as Caroline states, it would clearly be unlawful. Government Code Section 54950 et seq. (Brown Act); Charter Article VI, Sections 613 and 615.

In January, the Council belatedly added to its Agenda, giving landlords just two business days in which to comment before the vote, the landlord protections which Caroline told the public five months earlier the Council had already "establish[ed]."

In January, Caroline resorted to further deceit, and for emphasis joined it with fear mongering, by advocating passage of new tenant protections. Caroline wrote:

It was "my Ordinance." In fact, she Gleam Davis and Jess Zwick proposed the new legislation in August, and in August and January all Council members voted in support of it. This legislation went forward because of the support and approval of all Council members: it was not "Caroline's ordinance."

Caroline wrote: "Since 2021, reported evictions have increased over 300% in Santa Monica."

This is false and misleading. There are over 27,000 rental units in the City of Santa Monica. Between 2021 and 2023, the number of eviction proceedings filed increased to 67 in 2023. While than may represent an increase since 2021 of 300%:

- there is no evidence of the number of proceedings resulted in actual evictions.

- there is no evidence of the grounds for eviction asserted.

- there is no evidence of the number of evictions actually approved by the court.

- Santa Monica renters are the beneficiaries of below-market rent and numerous other protections. No renter in their right mind would risk that or the costs and stress of eviction proceedings by failing to pay their rent. There is no evidence that a renter unable to pay one month's rent would be able to pay the amount Caroline would require for eviction. And where does it end - if Santa Monica can prevent evictions until more than one month's rent is past due, what would prevent a local law preventing evictions until 10 years' rent is past due, or perhaps banning all evictions for nonpayment of rent. All of these would contradict California law which expressly allows evictions for nonpayment of rent. They would also constitute takings of private property in violation of the U.S. and California Constitutions. But if the City thinks it can prohibit evictions when rent that is due is not paid, it may as well prohibit all evictions for nonpayment of rent.

- there should be no surprise if the number of eviction proceedings were to increase recently following the lifting of Covid-related eviction protections. The City's own records show that the number of eviction notices has declined since 2018 when the City reported 112 and 2019 when it reported 86. Santa Monica Rent Control Board 2022 Annual Report, page 44. Caroline's fear mongering that there is an eviction epidemic is disproved by the City's own figures.

- most importantly, there is absolutely no evidence that any of the proceedings or evictions referenced by Caroline would have been prevented if this Initiative were law. 67 eviction proceedings represents an unknown number of evictions on any ground or for nonpayment of rent and 0.00248148 of the tenancies in Santa Monica. This, Caroline argues, is a "growing eviction crisis." It clearly is not. The number of evictions proceedings has declined in the last four years since 2018 and 2019.

Caroline is proposing by lies, deceit and fear mongering an Initiative that is unlawful and if enacted would have speculative and at best an extremely minimal if any benefit to the renters of Santa Monica. A failed career in the private sector and a stalled career in County government might warrant compassion, but when Caroline pursues unlawful legislation through lies and deceit that warrants censure by this City Council, not endorsement.

If the City Council wants to incentivize evictions in the near future, violate the U.S. and State Constitutions, and subject the City and themselves to enormous litigation and potential liability, then proceed to put the Initiative on the November ballot. Lawyers need the business, Santa Monica landlords need a court victory and just compensation for the City's clearly unlawful acts, and renters need to know that members of the Council confer benefits that are unenforceable and detrimental if relied on.

Either forget the Initiative, or pursue one that a landlord may not evict a tenant for nonpayment of rent, no matter how large the amount of unpaid rent. The Council must never forget that the apartments in Santa Monica are the private property of people - husbands, wives, fathers and mothers - who invested considerable amounts to acquire and maintain them and who rely on these investments for their livelihoods. It may be expedient to help address the homeless problem by robbing banks and distributing the stolen funds to the homeless. That would be immoral. It is no less immoral for the citizens of Santa Monica and their representatives to unilaterally assert almost total control over property owners' private property. Go forward with this Initiative and interfere with apartment owners' statutory right to evict tenants who do not pay their rent - why not a law prohibiting eviction for any amount of unpaid rent - and the Council, the City and its taxpayers will pay the considerable price of this clearly unlawful conduct.