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Law Banning ‘Crime-Free’ Ordinances No Bar to Injunction on Gang-Infested Dwelling—C.A.
Opinion Says 2024 Statute Does Not Interfere With Enforcement of State-Law Nuisance Action by L.A. City Attorney’s Office
By Kimber Cooley, associate editor
Div. Four of this district’s Court of Appeal has held that a new statute aimed at eliminating so-called “crime-free” housing ordinances does not undermine the enforcement of state law nuisance actions by local prosecutors based on ongoing criminal activity at residential buildings.
At issue is Government Code §53165.1, effective Jan. 1, 2024, which provides that “[a] local government shall not promulgate, enforce, or implement an ordinance, rule, policy, program, or regulation affecting a tenancy” that imposes any penalty on a landlord or tenant based “solely” on “contact with a law enforcement agency” or “requires or encourages” an owner to “evict or penalize” based on such interactions, arrests, or convictions.
Also forbidden by the statute is any such rule requiring a landlord to “perform a criminal background check” on any prospective renters or “[d]efin[ing], as a nuisance, contact with a law enforcement agency, request for emergency assistance, or an act or omission that does not constitute a nuisance” under the state-wide public nuisance law, found at Civil Code §3479 et seq.
The question arose in an action filed by the Office of the Los Angeles City Attorney against the owners of a North Hollywood apartment building, alleging that a gang-related public nuisance exists at the 116-unit complex based on police reports detailing ongoing criminal activity. The owners challenged a preliminary injunction forcing them to implement increased security measures, arguing that §53165.1 operates as a bar to the enforcement of the order.
In an unpublished opinion, filed Thursday and written by Los Angeles Superior Court Judge Nicholas Daum, sitting by assignment, the court affirmed an order upholding the injunction.
Daum said that the nuisance law at issue is a state law, not a local “ordinance, rule, policy, program or regulation” as contemplated by §53165.1, and rejected the argument that because the matter was being pursued by a city prosecutor’s office, it is an enforcement action taken by a “local government.”
Acting Presiding Justice Helen Zukin and Justice Audrey B. Collins joined in the opinion.
Sprawling Property
Seeking relief from the injunction were Group IX BP Properties LP, Group IX BP Properties Inc., Regency Management Inc., PAMA Management Inc., and Golden Management Services Inc., the owners and managers of the sprawling 12-building property located in the 13100 and 13200 blocks of Vanowen Street.
In February 2022, then-City Attorney Mike Feuer’s office filed a complaint against them, alleging that they had managed the property in a manner that created a public nuisance. The complaint cites the regular presence of resident and non-resident gang members and notes incidents of gunfire, deadly shootings, robberies, fireworks, and other illegal conduct at the premises.
The prosecutors submitted more than 100 police reports in support of their request for the preliminary injunction.
On Aug. 12, 2022, Los Angeles Superior Court Judge Holly J. Fujie granted the preliminary relief and ordered the defendants “to implement several security measures” including closing off the property to the public, installing electronic gates, and operating web-based camera systems. She also ordered the management companies to perform criminal background checks and refrain from renting to those with certain disqualifying criminal histories.
Sec. 53165.1 went into effect while an appeal was pending. On Jan. 18, 2024, Div. Four affirmed the order but remanded for the consideration of whether any of the terms must be modified in light of the new statute.
Without conceding the applicability of the section, the prosecutors proposed that the injunction be modified to remove the requirements that defendants conduct background checks on prospective tenants and evict tenants engaged in certain kinds of illegal activity.
Fujie adopted the proposed changes and otherwise “confirmed” the validity of the preliminary injunction. She reasoned that the “mere use of law enforcement contacts as evidence” did not warrant vacatur of the order.
Fails at Outset
Daum said that the “[d]efendants’ argument that this action is barred by section 53165.1 fails at the outset,” reasoning:
“It is very unlikely that the Legislature intended to apply section 53165.1 to the enforcement of statewide law. The prohibition on enforcement uses the words ‘ordinance’ ‘rule’ ‘policy’ ‘program’ and ‘procedure.’ It nowhere uses the word ‘law.’ Nowhere in section 53165.1 is there an express prohibition on enforcing state law.”
He noted that the terms used in the section are commonly defined as matters for local governance and said that “[w]e are aware of no California case or statute that has applied a ban on enforcing an ‘ordinance, rule, policy, program, or regulation’ to an enforcement of state law enacted by the Legislature.”
The defendants contend that the characterization of the action as an enforcement of a city policy is supported by the complaint, which lists, under the names of the attorneys appearing on the matter, “Citywide Nuisance Abatement Program” (“CNAP”) in addition to “Office of the Los Angeles City Attorney.”
Faulting that logic, Daum wrote:
“The CNAP, a group of city agencies, is not a ‘program’ that can be enforced at all—and, in any event, this action does not seek to ‘promulgate, enforce, or implement’ that ‘program.’…Rather, the city, working with the CNAP task force brought this action against defendants on behalf of the state to enforce state laws….”
He continued:
“The City of Los Angeles is certainly a local government. But just because the Los Angeles City Attorneys’ Office represents (i.e., is acting as the attorney for) the People of the State of California in this lawsuit, based upon a special provision of state law that allows it to do so, does not mean that the prosecuting party is anything other than the People of the State of California.”
Solely on Contact
He opined that “even if section 53165.1 applied to this action,” the preliminary injunction does not penalize tenants or their landlords based solely on contact with law enforcement.
Saying that “basis for the People’s lawsuit is defendants’ mismanagement of the property, which has allegedly caused a gang-related public nuisance,” he concluded that the action seeks remedies for the failure to properly maintain the premises and not as a penalty for police interactions.
Daum remarked:
“Nothing in the statute supports defendants’ argument that the People’s submission of police reports as evidence of their claim of a public nuisance turns this action into one that penalizes landlords and tenants ‘solely as a consequence of contact with a law enforcement agency.’….For this…independent reason, we conclude the trial court did not err by declining to dismiss the case and confirming the validity of the modified preliminary injunction.”
He said there was “no ambiguity” in the statute but pointed out that the legislative history supports the court’s findings, noting that the commentary to the bill indicates that it was meant to target “crime-free” ordinances, under which landlords are instructed or encouraged to refuse to rent to tenants with criminal backgrounds, and was not intended to interfere with statewide laws.
The case is People v. Group IX BP Properties LP, B337891.
Representing the defendants were Jerry Alan Behnke, Stephen G. Larson, Daniel R. Lahana, and Mehrunisa Ranjha of the Los Angeles-based firm Larson LLP. Acting on behalf of the People was Los Angeles Deputy City Attorney Jonathan H. Eisenman.
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