Short term rentals prohibited. It shall be unlawful for any person to offer or make available for rent or to rent (by way of a rental agreement, lease, license or any other means, whether oral or written) for compensation or consideration a residential dwelling, a dwelling unit or a room in a dwelling for less than thirty (30) consecutive days. It shall be unlawful for any person to occupy a residential dwelling, a dwelling unit or a room in a dwelling for less than thirty (30) consecutive days pursuant to a rental agreement, lease, license or any other means, whether oral or written, for compensation or consideration. (Ord. 16-1365 §2, 2016)

On May 24, 2016, the City adopted Ordinance No. 16-1365 (the "Ordinance"), which amended the Hermosa Beach Municipal Code ("HBMC") Title 17 (the "Zoning Code") to include the following prohibition:

Petitioners own residential properties in the City of Hermosa Beach. (Amended Petition ("AP"), 4.) For the past two decades, Petitioners have been using their properties for the purpose of short term vacation rentals ("STVR"). (Ibid.)

I. Statement of the Case

For the following reasons, the Court DENIES Petitioners' request for a preliminary injunction.

Petitioners move the Court for an order preliminarily enjoining Respondent City of Hermosa Beach ("City") from enforcing Ordinance No. 16-1365, Title 17 of the City of Hermosa Beach Municipal Code, relating to the short term rental of residential properties for fewer than thirty days.

[TENTATIVE] ORDER DENYING PETITIONERS' REQUEST FOR A PRELIMINARY INJUNCTION

Judge Amy D. Hogue Hearing Date: October 14, 2016 Dept.: 86

Case No.: BS163448

Respondent.

CITY OF HERMOSA BEACH, CALIFORNIA,

vs. Petitioners,

JANINE JOHNSTON; JACQUELIN WELTER; LESLIE RHODES; YVONNE BERNARD and THOMAS MALONE,

The Zoning Code defines "dwelling" as "a building or portion of a building designed for residential purposes, including one-family, two-family and multiple dwellings, but shall not include hotels, boarding and lodging houses." (HMBC § 17.04.040.) "Family" is defined as "two or more persons living together in a dwelling unit, sharing common cooking facilities, and possessing the character of a relatively permanent single bona fide housekeeping unit in a domestic bond of social, economic and psychological commitment to each other, as distinguished from a group occupying a boarding house, club, dormitory, fraternity, hotel, lodging house, motel, rehabilitation center, rest home or sorority." (Ibid.) "Commercial use" is defined as "a use that involves the exchange of cash, goods, or services, barter, forgiveness of indebtedness, or any other

The Zoning Code provides that the single-family residential zone "is intended to provide development standards for single-family dwellings; assure adequate access to schools, parks and other community service facilities; prohibit negative impacts from adjacent nonresidential uses; protect the residential character of each neighborhood; and otherwise encourage a high quality environment for family life and the preservation of residential property values." (HMBC § 17.08.10.)

The Hermosa Beach Municipal Code ("HBMC") Title 17 (the "Zoning Code") specifies the uses permitted in a residential zone. (HMBC § 17.08.020.) The Zoning Code does include STVRs as a permitted use in residential zones. (Ibid.) The Zoning Code also prohibits "any building or land" to be used for any purpose except those expressly permitted under the Zoning Code. (HMBC § 17.06.070.)

A. Hermosa Beach Zoning Code

II. Summary of Applicable Law

Petitioners now move for a preliminary injunction. The City opposes.

On August 8, 2016, Petitioners filed a petition for a writ of mandate enjoining the City from enforcing the Ordinance on the grounds that the Ordinance: (1) is unconstitutional; (2) deprives Petitioners of their legal nonconforming use property rights; (3) violates the equal protection clause; and (4) violates Petitioners' right to free speech.

Ordinance No. 16-1365 also enacted section 17.42.180, which states: "No person or entity shall maintain any advertisement of a rental prohibited under Sections 17.08.025, 17.10.015, 17.12.015, 17.14.015, 17.16.015, 17.18.025and17.20.015." (AP~ 14.)

(AP ~ 13; HMBC §§ 17.08.025; 17.10.015; 17.12.015; 17.14.015; 17.16.015; 17.18.025; 17.20.015.)

[A] local government's (a) land use plans, (b) zoning ordinances, (c) zoning district maps, and ( d) within sensitive coast resource areas, other implementing actions, which, when taken together, meet the requirements of, and implement the provisions and policies of this division [of the Coastal Act] at the local level.

The Act defines an LCP as:

Because local areas within the coastal zone may have unique issues not amenable to centralized administration, the Coastal Act "encourage[ s] state and local initiatives and cooperation in preparing procedures to implement coordinated planning and development" in the coastal zone. (Pub. Res. Code §30001.5; Ibarra v. California Coastal Comm., supra, 182 Cal.App.3d at 694-96.) To that end, the Act requires that "each local government lying, in whole or in part, within the coastal zone" prepare a local coastal program ("LCP"). (Pub. Res. Code §30500(a).) The local government prepares the LCP in consultation with the Commission and with full public participation. (Pub. Res. Code§§ 30500(a), (c), 30503; McAllister v. California Coastal Comm., (2009) 169 Cal.App.4th 912, 930, 953.)

The Act's goals are binding on both the Coastal Commission and local government and include: (1) maximizing, expanding and maintaining public access (Pub. Res. Code§§ 30210-14); (2) expanding and protecting public recreation opportunities (id. at §§ 30220-24); (3) protecting and enhancing marine resources including biotic life (id. at§§ 30230-37); and (4) protecting and enhancing land resources (id. at §§ 30240-44). The supremacy of these statewide policies over local, parochial concerns is a primary purpose of the Act, and the Coastal Commission is therefore given the ultimate authority under the Act and its interpretation. (Pratt Construction Co. v. California Coastal Comm., (2008) 162 Cal.App.4th 1068, 1075-76.)

The Coastal Act of 1976 (Pub. Res. Code §30000 et seq.,) (the "Coastal Act" or the "Act") is the legislative continuation of the coastal protection efforts commenced when the People passed Proposition 20, the 1972 initiative that created the Coastal Commission. (See Ibarra v. California Coastal Comm., (1986) 182 Cal.App.3d 687, 693.) One of the primary purposes of the Coastal Act is the avoidance of deleterious consequences of development on coastal resources. (Pacific Legal Foundation v. California Coastal Comm., (1982) 33 Cal.3d 158, 163.) The Supreme Court described the Act as a comprehensive scheme to govern land use planning for the entire coastal zone of California. (Yost v. Thomas, (1984) 36 Cal.3d 561, 565.) The Act must be liberally construed to accomplish its purposes and objectives. (Pub. Res. Code § 30009.)

B. The Coastal Act

remuneration in exchange for goods, services, lodging, meals, entertainment in any form, or the right to occupy space over any period of time."

1The LUP is defined in Pub. Res. Code §30108.5 as: "[T]he relevant portions of a local government's general plan, or local coastal element which are sufficiently detailed to indicate the kinds, location, and intensity of land uses, the applicable resource protection and development policies and, where necessary, a listing of implementing actions."

Once the LUP is certified, the Commission reviews the implementing actions to determine whether those items are sufficient to implement the policies of the certified LUP. (Pub. Res. Code §30513.) If the Commission determines the implementing actions are adequate, it certifies the LCP. As with the LUP, if the Commission denies certification of the implementing actions, it may suggest modifications that, if adopted, would result in certification of the LCP as a whole. (Ibid.)

In making this determination, the Commission first reviews the LUP for conformity with the policies in the Act. (City of Chula Vista v. Superior Court, (1982) 133 Cal.App.3d 472, 481; Pub. Res. Code§§ 30500-26.) After the required public hearing(s), it may certify or not certify all or a portion of the LUP. (Pub. Res. Code§§ 30512, 30512.2.) If it does not certify the LUP, the Commission is required to provide written reasons for not certifying and may suggest changes to the local government that, if enacted, would result in certification of the L UP. The Commission does not normally have the authority to change the LUP through its own action or to require the local government to do so. (Ibid.)

Under normal circumstances, once the local government drafts an LCP in accordance with the Commission's guidelines (See Pub. Res. Code §§ 30501, 30503), the local government's governing body adopts the proposed LCP as being in conformity with provisions of the Act. (Pub. Res. Code § 30510.) The local government then submits the LCP to the Coastal Commission for review and certification. (Pub. Res. Code §3051 l(a).)

Thus, the LCP consists of the land use plan ("LUP")1 and the implementing actions of zoning ordinances, district maps, and other implementing actions. (Yost v. Thomas, supra, 36 Cal.3d at 571-72.) These may be prepared together or sequentially, and may be prepared separately for separate geographical areas or "segments" of a local coastal zone. (Pub. Res. Code §30511.) The LCP provides a comprehensive plan for development within the coastal zone with a focus on preserving and enhancing the overall quality of the coastal zone environment as well as expanding and enhancing public access. (Citizens of Goleta Valley v. Board of Supervisors, (1990) 52 Cal.3d 553, 571.)

(Pub. Res. Code §30108.6.)

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 upon a verified complaint only if it contains sufficient evidentiary as opposed to ultimate facts. (CCP § 527(a).) For this reason, a pleading alone rarely suffices. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) iii! 9:579-580.) A plaintiff seeking injunctive relief must also show the absence of an adequate damages remedy at law. (Code Civ. Pro. §526(a)(4).)

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"Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction." (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) "[T]he greater the ... showing on one, the less must be shown on the other to support an injunction." (Ibid. [quoting Butt v. State of California, (1992) 4 Cal.4th 668, 678].) The burden of proof is on the plaintiff as the moving party "to show all elements necessary to support issuance of a preliminary injunction." (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

"[A] court will deny a preliminary injunction unless there is a reasonable probability that the plaintiff will be successful on the merits, but the granting of a preliminary injunction does not amount to an adjudication of the merits." (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 866.) "The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits." (Ibid.)

Preliminary Injunctions c.

The Coastal Act requires, with narrow exceptions, a coastal development permit ("CDP") for any development in the coastal zone in addition to any other permit required. (Pub. Res. Code §30600.) Authority for issuing CDPs is initially vested in the Coastal Commission. A local government may obtain authority to issue CDPs several different ways. Authority to issue CDPs automatically passes from the Coastal Commission once the local government's LCP is certified. (Pub. Res. Code §30519(a).) Priorto certification of the LCP, a local government may accept the authority and voluntarily adopt necessary procedural ordinances for processing CDPs. (Pub. Res. Code §30600(b).) In all cases, an applicant seeking to develop in a coastal zone must obtain a CDP from either the Coastal Commission or the local government. (Pub. Res. Code §30600(a), (c).)

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However, these provisions do not apply to general zoning provisions enacted by coastal cities such as Hermosa Beach. PRC§ 30200 states that "the policies of this chapter [including sections 30213 and 30222] shall constitute the standards by which the adequacy of local coastal programs ... and the permissibility of proposed developments subject to the provisions of this division are determined." This aligns with the Coastal Commission's "primary duties under the coastal act," which are to "grant or deny permits for coastal development (§ 30600)" and "approve or disapprove local coastal programs(§§ 30500-30522)." (Ibarra v. California Coastal Com. (1986) 182 Cal.App.3d 687, 696.)

"The use of private lands suitable for visitor-serving commercial recreational facilities designed to enhance public opportunities for coastal recreation shall have priority over private residential, general industrial, or general commercial development, but not over agriculture or coastal-dependent industry."

PRC§ 30222 states:

"Lower cost visitor and recreational facilities shall be protected, encouraged, and, where feasible, provided. Developments providing public recreational opportunities are preferred."

Petitioners argue that the Ordinance violates the Coastal Act's provisions promoting visitor and recreational facilities. PRC§ 30213 states:

Petitioners fail to demonstrate a probability of prevailing on their claim that the Ordinance violates the Coastal Act

1.

Likelihood o[Success on the Merits A.

5 III. Analysis

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 Code Civ. Pro. § 529(a); City of South San Francisco v. Cypress Lawn Cemetery Ass 'n., (1992) 11 Cal. App. 4th 916, 920.)

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2 The Court notes that in reply, Petitioners concede that they "d[ o] not take the position that the enactment of the Ordinance constituted a reviewable CDP .... " (Reply p. 2.)

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Petitioners also contend that the Ordinance violates their right to free speech. Ordinance section 17.42.180 states: "No person or entity shall maintain any advertisement of a rental prohibited under Sections 17.08.025, 17.10.015, 17.12.015, 17.14.015, 17.16.015, 17.18.025 and 17.20.015."

Petitioners fail to demonstrate a probability of prevailing on their claim that the Ordinance violates their right to free speech

2.

Accordingly, the Court finds that Petitioners fail to show a likelihood of prevailing on the merits of this claim.

Petitioners suggest that the term "local implementing ordinances" includes zoning ordinances enacted prior to certification of an LCP. However, the Coastal Act defines "implementing actions" to mean "the ordinances, regulations, or programs which implement either the provisions of the certified local coastal program or the policies of this division and which are submitted pursuant to Section 30502." (PRC § 30108.4.) Petitioners fail to cite any portion of the Coastal Act authorizing the Commission to review a City's zoning ordinances in the absence of an LCP.

"A certified local coastal program and all local implementing ordinances, regulations, and other actions may be amended by the appropriate local government, but no such amendment shall take effect until it has been certified by the commission."

The Court is not persuaded by Petitioners' argument that prior to certification of an LCP, any zoning ordinances passed by the City "are subject to the approval or disapproval of the Commission for conformity with the Costal Act." (Reply p. 4.) In support of this position, Petitioners cite PRC§ 30514, which states:

In this case, however, the City did not enact an LCP. Nor did the City propose a coastal development, for which the City would have been required to obtain a CDP.2 Instead, the City enacted a zoning ordinance pursuant to its police powers. (See Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1151 ["Land use regulation in California historically has been a function of local government under the grant of police power contained in article XI, section 7 of the California Constitution."].)

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In this case, however, Petitioners fail to show that they were legally permitted to use their properties for STVRs prior to enactment of the Ordinance. The City's Zoning Code expressly prohibits "any building or land" to be used for any purpose except those expressly permitted under the Zoning Code. (HMBC § 17.06.070.) There is no dispute that even before enactment of the Ordinance, the Zoning Code did not expressly permit STVRs in residential zones. (HMBC §

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Petitioners argue that the Ordinance deprives them of the commercial use of their property and is thus an impermissible taking. Generally, "[i]f the law effects an unreasonable, oppressive, or unwarranted interference with an existing use, or a planned use for which a substantial investment in development costs has been made, the ordinance may be invalid as applied to that property unless compensation is paid." (Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 551-52.) As a result, "[z]oning ordinances and other land use regulations customarily exempt existing uses to avoid questions as to the constitutionality of their application to those uses." (Ibid.)

Petitioners fail to demonstrate a probability of prevailing on their claim that the Ordinance violated their vested rights to use their properties for STVRs

3.

In response, Petitioners cite Reed v. Town of Gilbert, Ariz. (2015) 135 S.Ct. 2218, 2226 for the proposition that the government "has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Reed is inapposite, however, because it did not involve commercial speech or illegal activity. (See California Outdoor Equity Partners v. City of Corona (C.D. Cal., July 9, 2015, No. CV 15-03172 MMM AGRX) 2015 WL 4163346, at* 10 [finding that Reedhad "no bearing" on dispute over billboard bans because Reed"d[id] not concern commercial speech" and did not cite or apply the Central Hudson factors].)

The First Amendment's concern for commercial speech is based on the informational function of advertising. [Citation.] Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, [citation] or commercial speech related to illegal activity, [citation].

The Court finds that the Ordinance does not violate Petitioners' right to free speech because the First Amendment does not protect commercial speech advertising illegal activity. As the U.S. Supreme Court explained in Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York (1980) 447 U.S. 557, 562-64:

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AMYD.HOGUE JUDGE OF THE SUPERIOR COURT

Dated: -----

For the foregoing reasons, the Court DENIES the request for a preliminary injunction.

Conclusion IV.

Nevertheless, the Court finds that the balance of harm weighs in favor of denying the preliminary injunction. When unregulated, STVRs can have the following negative impacts: (1) greater demand for services such as police and emergency services; (2) illegal parking and congestion; (3) excessive noise, disorderly conduct, vandalism, overcrowding, trash accumulation, and other disturbances; ( 4) changes in neighborhood character and investment; (5) reduction in available long term housing; and (6) enforcement challenges. (Robertson Deel., 6; Exh. A pp. 1- 2.) The Court finds that the City's interest in regulating STVRs and mitigating these impacts outweighs Petitioners' interest in receiving rental income during the pendency of this lawsuit.

Before a court will grant a preliminary injunction, the moving party must establish at least some probability of success on the merits. (Butt v. State of California (1992) 4 Cal.4th 668, 678.) The reasoning behind this rule is that "[w]here there is ... no likelihood that the plaintiff will prevail, an injunction favoring the plaintiff serves no valid purpose and can cause only needless harm." (American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 838.) If a moving party is able to make such a showing, a court will then "examin[ e] all of the material before it in order to consider 'whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it, .... ' [Citations.]" (Take Me Home Rescue v. Luri (2012) 208 Cal.App.4th 1342, 1353 .) Because Petitioners fail to establish a probability of success on the merits, it is not necessary to weigh the respective harm to the parties.

Balance of Harms Favors Denying the Preliminary Injunction B.

Accordingly, the Court finds that Petitioners fail to demonstrate a probability of prevailing on the merits of this claim.

17.08.020.) (See Conejo Wellness Center, Inc. v. City of Agoura Hills, (2013) Cal.App.4th 1534, 1561-62 [even before it was expressly banned, operation of a medical marijuana dispensary was not a permitted use because it was not expressly permitted].)

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