I. Background

24 The global COVID-19 pandemic is now in its third year. At the 25 outset of the pandemic in the spring of 2020, Defendant Los Angeles 26 County (“the County”) implemented a moratorium on evictions of 27 residential tenants. (Complaint ¶ 2.) The moratorium was premised 28 on the County Board of Supervisors’ finding that “COVID 19 is Case 2:22-cv-02085-DDP-JEM Document 29 Filed 10/19/22 Page 2 of 12 Page ID #:1500

1 causing, and is expected to continue to cause, serious financial 2 impacts to Los Angeles County residents and businesses, . . . 3 impeding their ability to pay rent[.]” (Plaintiff’s Request for 4 Judicial Notice, Ex. 7 at 203.) The Board further found that 5 “displacing residential . . . tenants . . . will worsen the present 6 crisis,” and “severely impact the health, safety and welfare of 7 County residents.” (Id. at 203-204.) 8 Although it remains to be seen whether, as Plaintiffs 9 optimistically assert, “[w]e are at the end stages of the 10 pandemic,” 2022 has not seen the lockdowns and other economic 11 disruptions of the earlier days of the public health crisis. 12 (Reply at 16.) Fortunately, Los Angeles County’s COVID 19 13 community level, as determined by the Centers for Disease Control, 14 is currently “low.”1 Businesses are open, and the County no longer 15 requires that masks be worn in most indoor settings.2 16 Nevertheless, the Board found earlier this year that the emergence 17 of COVID-19 variants, such as the Omicron variant, “demonstrat[es] 18 a continuing necessity to preserve and extend many [] tenant 19 protections.” (RJN, Ex. 7 at 202 at 207.) Accordingly, the County 20 replaced its residential eviction moratorium with a revised set of 21 lesser “Tenant Protections.” (RJN, Ex. 7 at 202).3 22 23 1 24 http://publichealth.lacounty.gov/media/Coronavirus/data/response-pl an.htm 25 2 26 http://publichealth.lacounty.gov/media/Coronavirus/docs/HOO/COVID19 ResponsePlan.pdf at 4-5. 27 3 Pursuant to state law, the protections at issue here took 28 effect July 1, 2022. Cal. Civ. Proc. Code § 1179.05(a)(1). 2 Case 2:22-cv-02085-DDP-JEM Document 29 Filed 10/19/22 Page 3 of 12 Page ID #:1501

1 Plaintiffs are comprised of and represent over 30,000 owners 2 and managers of rental housing units. (Complaint ¶¶ 11-12.) 3 Plaintiffs’ Complaint seeks declaratory and injunctive relief under 4 42 U.S.C. § 1983 and California Code of Civil Procedure § 1060 to 5 enjoin enforcement of the Tenant Protections, alleging that the 6 Tenant Protections violate Plaintiffs’ due process rights and are 7 unconstitutionally vague. Plaintiffs’ instant motion seeks a 8 preliminary injunction on those same grounds. 9 II. Legal Standard 10 A party seeking a preliminary injunction must show that (1) it 11 is likely to succeed on the merits; (2) it will suffer irreparable 12 harm in the absence of preliminary relief; (3) the balancing of the 13 equities between the parties that would result from the issuance or 14 denial of the injunction tips in its favor; and (4) an injunction 15 is in the public interest. Winter v. Natural Resources Def. 16 Council, 555 U.S. 7, 20 (2008). Preliminary relief may be 17 warranted where a party (1) shows a combination of probable success 18 on the merits and the possibility of irreparable harm, or (2) 19 raises serious questions on such matters and shows that the balance 20 of hardships tips in favor of an injunction. See Arcamuzi v. 21 Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987). 22 “These two formulations represent two points on a sliding scale in 23 which the required degree of irreparable harm increases as the 24 probability of success decreases.” Id.; see also 25 hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 992 (9th Cir. 26 2019). Under both formulations, the party must demonstrate a “fair 27 chance of success on the merits” and a “significant threat of 28 3 Case 2:22-cv-02085-DDP-JEM Document 29 Filed 10/19/22 Page 4 of 12 Page ID #:1502

1 irreparable injury” absent the requested injunctive relief.4 2 Arcamuzi, 819 F.2d at 937. 3 III. Discussion 4 A. Likelihood of Success on the Merits 5 Plaintiffs contend, among other things, that the Tenant 6 Protections at issue here are unconstitutionally vague. Indeed, 7 determining the nature and scope of the extant Tenant Protections 8 in the first instance is no simple task. 9 Rather than adopt a new resolution implementing the Tenant 10 Protections, the Board of Supervisors issued a resolution (“the 11 Resolution”) incorporating over a dozen prior resolutions and 12 amendments related to COVID-19.5 (RJN Ex. 7 at 207.) The result 13 is a resolution that lists, across several different sections and 14 subsections, different types of protections, applicable at 15 different times, to different groups of tenants. As relevant here, 16 Section IV(K) of the Resolution defines the term “Protections” only 17 to mean “the set of tenant protections applicable to a Tenant 18 pursuant to the terms of this Resolution,” providing little 19 guidance to landlords or tenants. (RJN Ex. 7 at 209). 20 Section VI of the Resolution is, somewhat misleadingly, titled 21 “Eviction Protections.” (RJN Ex. 7 at 211). As the County appears 22 to acknowledge, however, Section VI does not actually describe the 23 24 4 Even under the “serious interests” sliding scale test, a plaintiff must satisfy the four Winter factors and demonstrate 25 “that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild 26 Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 5 Resolution of the Board of Supervisors of the County of Los 27 Angeles Further Amending And Restating The County of Los Angeles COVID-19 Tenant Protections Resolution (January 25, 2022). (RJN 28 Ex. 7 at 202). 4 Case 2:22-cv-02085-DDP-JEM Document 29 Filed 10/19/22 Page 5 of 12 Page ID #:1503

1 form of any specific, currently applicable eviction or tenant 2 protections regarding COVID-related nonpayment of rent. Section 3 VI(A)(1)states, “During the time periods set forth below, a Tenant 4 shall not be evicted for nonpayment of rent . . . if the Tenant 5 demonstrates an inability to pay rent . . . due to Financial 6 Impacts Related to COVID-19 . . . .” (RJN Ex. 7 at 211 (emphasis 7 added)). Despite this seemingly categorical language, the County 8 asserts that there is no longer a total moratorium on evictions for 9 COVID-related nonpayment of rent, and that different, narrower 10 protections apply during the current “Extensions Protections 11 Period” pursuant to Section VI(A)(1)(b)(ii). (Id. at 212.) That 12 subsection provides that a more limited pool of qualifying 13 residential tenants “is protected from eviction under this 14 Resolution.” (Id. (emphasis added)). Only a residential tenant 15 who (1) has household income equal to or less than 80 percent of 16 the Area Median Income, (2) is unable to pay rent (3) “so long as 17 the reason for nonpayment was Financial Impacts Related to COVID- 18 19,” (4) notifies their landlord of this COVID-related inability to 19 pay and (5) self-certifies income level and financial hardship (6) 20 within seven days after the date missed rent is due “is protected 21 from eviction.” (Id.) Landlords “must accept” a qualifying tenant’s 22 self-certification of income level and financial hardship. (Id. at 23 216.) Section VI(A)(1)(b)(ii) does not, however, set forth what 24 “protection from eviction” entails. 25 According to the County, that a qualifying tenant “is 26 protected from eviction” does not actually mean that the tenant 27 cannot be evicted. Such is not apparent from Section 28 VI(A)(1)(b)(ii), or from any other provision in Section VI (or 5 Case 2:22-cv-02085-DDP-JEM Document 29 Filed 10/19/22 Page 6 of 12 Page ID #:1504

1 Section IV). Rather, to determine what “protection from eviction” 2 under Section VI(A)(1)(b)(ii) means, a tenant or landlord must 3 refer to the language of Section XI, the “Remedies” section of the 4 Resolution. (RJN Ex. 7 at 221.) There, Section XI(C) states that 5 “any Protections . . . provided under this Resolution shall 6 constitute an affirmative defense for a Tenant in any unlawful 7 detainer action . . . .” (Id. (emphasis added).) Thus, under the 8 County’s interpretation, the current Tenant Protections do no more 9 than provide an affirmative defense to a discrete set of tenants, 10 under relatively specific circumstances, who are already involved 11 in unlawful detainer proceedings. 12 That the Tenant Protections are difficult to suss out is not 13 sufficient to render them unconstitutionally vague. See United 14 States v. Williams, 553 U.S. 285, 304 (2008) (“perfect clarity and 15 guidance has never been required”). The question, rather, is 16 whether the resolution gives “the person of ordinary intelligence a 17 reasonable opportunity to know what is prohibited, so that he may 18 act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 19 (1972). Laws must also provide sufficiently explicit standards to 20 prevent arbitrary or discriminatory enforcement. Id.; Williams, 21 553 U.S. at 304. 22 The County contends that the Tenant Protections cannot 23 possibly run afoul of these prescriptions because they do no more 24 than establish a new affirmative defense for tenants, and thus do 25 not prohibit landlords from doing anything. That blinkered reading 26 of the Resolution, however, ignores Section IX(I), which expressly 27 prohibits landlords from “[t]aking action to terminate any tenancy 28 including service of any notice to quit or notice to bring any 6 Case 2:22-cv-02085-DDP-JEM Document 29 Filed 10/19/22 Page 7 of 12 Page ID #:1505

1 action to recover possession of a rental unit based upon facts 2 which the Landlord has no reasonable cause to believe to be true or 3 upon a legal theory which is untenable . . . .” (RJN Ex. 7 at 220 4 (emphasis added).) Violations of Section IX subject landlords to 5 administrative fines and civil and criminal penalties under 6 Sections X and XI. (Id. at 220-221.) In other words, a landlord 7 cannot bring an unlawful detainer action, at peril of civil and 8 criminal penalties, unless the landlord reasonably believes that a 9 tenant’s affirmative defense, created by and comprising the Tenant 10 Protections, will fail. 11 A landlord cannot, of course, form any reasonable belief about 12 the viability of a particular tenant’s affirmative defense without 13 an understanding of the elements of the defense. Although 14 seemingly limited in application, the affirmative defense created 15 by the Tenant Protections is expansive in scope, in that it applies 16 to nonpayment of rent “so long as the reason for nonpayment was 17 Financial Impacts Related to COVID-19.” (RJN Ex. 7 at 212.) 18 “Financial Impacts” include (1) “substantial loss of income caused 19 by the COVID-19 pandemic,” (2) “loss of revenue or business . . . 20 due to business closure,” (3) “increased costs,” (4) “reduced 21 revenues or other similar reasons impacting a Tenant’s ability to 22 pay rent due,” (5) layoffs or “loss of compensable hours of work or 23 wages,” and (6) “extraordinary out-of-pocket medical expenses.” 24 (Id. at 208). “Related to COVID-19” means not just “related to . . 25 . [a] suspected or confirmed case of COVID-19, or caring for a 26 household or family member who has a suspected of confirmed case of 27 COVID-19,” but also related to “reduction or loss of income or 28 7 Case 2:22-cv-02085-DDP-JEM Document 29 Filed 10/19/22 Page 8 of 12 Page ID #:1506

1 revenue resulting from . . . economic or employer impacts related 2 to COVID-19.” (Id. at 209). 3 Given the breadth of these definitions, it would be impossible 4 for a landlord to determine whether the affirmative defense might 5 apply in any particular instance. The bounds of, for example, 6 “increased costs” resulting from “economic . . . impacts related to 7 COVID-19” are virtually limitless. Even the most exacting 8 categories of “Financial Impacts,” namely “substantial loss of 9 income” and “extraordinary” medical expenses, are inherently 10 variable and subjective. Indeed, the County acknowledges that “a 11 particular amount in lost income may be ‘substantial’ for one 12 tenant but not for another, just as a certain amount of medical 13 expenses may be ‘extraordinary’ to one tenant but not another.” 14 (Opp. at 14:19-21.) In the County’s view, this variability is a 15 feature, not a bug, insofar as it “permits the Resolution to apply 16 to different tenants of varying circumstances.”6 (Id. at 14:18- 17 19.) That may be, but that same vagueness also deprives landlords 18 of the ability to gauge whether any particular tenant can 19 successfully invoke the affirmative defense. Without any 20 meaningful guidance from the Resolution, landlords are left to 21 guess, not just as to the likelihood of success of any unlawful 22 detainer action, but as to whether the very filing of any such 23 action is prohibited. 24 25 26 6 The court notes that other provisions in the Resolution, and even within Section VI(A)(1)(b)(ii), are not so flexible. For 27 example, the affirmative defense applies only “so long as the reason for nonpayment was Financial Impacts Related to COVID-19.” 28 (RJN Ex. 7 at 211-212 (emphasis added).) 8 Case 2:22-cv-02085-DDP-JEM Document 29 Filed 10/19/22 Page 9 of 12 Page ID #:1507

1 Even if a landlord chooses to run the risk of initiating an 2 unlawful detainer proceeding, it is unclear whether she may contest 3 all of the elements of the Tenant Protections affirmative defense. 4 Among the required elements of the defense are that a tenant (1) be 5 unable to pay rent and (2) have a household income equal to or less 6 than eighty percent of the Area Median Income. The County concedes 7 that a tenant bears the burden of proof of establishing the 8 affirmative defense. The Resolution, however, states that 9 “Landlords must accept” “a Residential Tenant whose household 10 incomes [sic] is at 80 percent Area Median Income or below self- 11 certifies [sic] their income level and financial hardship . . . .” 12 (RJN Ex. 7 at 216). At oral argument, the County maintained that 13 the phrase “must accept” does not mean that landlords must accept 14 the merits of a tenant’s self-certification, but rather that “the 15 landlord must accept delivery of that self-certification.” That 16 interpretation has no support in the text of the Resolution, which 17 does not give a person of ordinary intelligence reasonable notice 18 that she is free to dispute a tenant’s income level or degree of 19 financial hardship, in court or elsewhere. 20 The County also appears to suggest that any infirmities in the 21 Resolution are of no moment because the affirmative defense must be 22 proven in “a full-fledged adversarial proceeding with a trial with 23 multiple levels of discovery available to both sides,” and a 24 neutral decisionmaker need not accept a tenant’s self-certification 25 as sufficient to carry the burden of proof. This argument is not 26 persuasive. As an initial matter, if a landlord “must accept” a 27 tenant’s representations as to certain elements of the affirmative 28 defense, it is unclear how any contrary position could ever be 9 Case 2:22-cv-02085-DDP-JEM Document 29 Filed 10/19/22 Page 10 of 12 Page ID #:1508

1 presented to a court in an adversarial proceeding. Furthermore, 2 and more fundamentally, a vague, standardless statute cannot be 3 resuscitated simply by delegating definitional responsibility to a 4 court. “If arbitrary and discriminatory enforcement is to be 5 prevented, laws must provide explicit standards for those who apply 6 them.” Grayned, 408 U.S. at 108. The void for vagueness doctrine 7 “guards against arbitrary or discriminatory law enforcement by 8 insisting that a statute provide standards to govern the actions of 9 police officers, prosecutors, juries, and judges.” Sessions v. 10 Dimaya, 138 S. Ct. 1204, 1212 (2018) (emphasis added). The 11 Resolution provides no more guidance to a neutral factfinder than 12 to a landlord as to what financial impacts a tenant must suffer to 13 invoke the affirmative defense. 14 Accordingly, Plaintiffs are likely to succeed on the merits of 15 their claim that the Resolution’s Tenant Protections are 16 unconstitutionally vague.7 17 B. Remaining Factors 18 The other Winter factors also weigh in favor of a preliminary 19 injunction. “It is well established that the deprivation of 20 constitutional rights unquestionably constitutes irreparable 21 injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) 22 (internal quotation marks omitted); see also Goldie’s Bookstore, 23 Inc. v. Superior Ct. of State of Cal., 739 F.2d 466, 472 (9th Cir. 24 1984) (“An alleged constitutional infringement will often alone 25 constitute irreparable harm.”). When the government is a party, 26 the remaining factors, the balance of equities and the public 27 7 Having so concluded, the court does not reach Plaintiffs’ 28 other claims. 10 Case 2:22-cv-02085-DDP-JEM Document 29 Filed 10/19/22 Page 11 of 12 Page ID #:1509

1 interest, merge. California v. Azar, 911 F.3d 558, 575 (9th Cir. 2 2018). Here, the question is a close one. The public interest is, 3 no doubt, served by efforts to minimize the spread of COVID-19. 4 See, e.g., Westlake Fitness LLC v. Cnty. of Ventura, No. 5 21-CV-0770-CBM-(EX), 2021 WL 971148, at *2 (C.D. Cal. Jan. 29, 6 2021). In light of the County’s current approach to other 7 containment measures, however, the denial of an injunction would 8 seemingly do little to further that objective. Furthermore, “it is 9 always in the public interest to prevent the violation of a party’s 10 constitutional rights.” Melendres, 695 F.3d at 1002 (internal 11 quotation marks and citation omitted). “[P]ublic interest concerns 12 are implicated when a constitutional right has been violated[] 13 because all citizens have a stake in upholding the Constitution.” 14 Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (quoting 15 Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005)). 16 Moreover, the Resolution’s vagueness problems appear largely to be 17 a matter of drafting, rather than fundamental character. “When 18 constitutional alternatives are available to achieve the same 19 goal,” maintaining an unconstitutional policy is not in the public 20 interest. Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 637 (2d 21 Cir. 2020). A preliminary injunction is, therefore, warranted 22 here. 23 IV. Conclusion 24 For the reasons stated above, Plaintiffs’ Motion for 25 Preliminary Injunction is GRANTED. Effective December 1, 2022, the 26 County is hereby enjoined from enforcing the Tenant Protections 27 described in Section VI(A)(1)(b)(ii) of the Resolution, as well as 28 11 Case 4:22-cv-02085-DDP-JEM Document 29 Filed 10/19/22 Page12o0f12 Page ID #:1510

1]} those portions of Sections IX(I}), X, and XI that reference or 2|| incorporate Section VI (A) (1) (b) (11i).°

IT IS SO ORDERED.

8 || Dated: October 19, 2022 9 DEAN D. PREGERSON 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ® Given the ostensible purpose of the Tenant Protections, the 27 potential for the County to adopt a constitutionally viable alternative, and the need for tenants and landlords to adjust to 28 and plan for a post-injunction legal landscape, the court finds that a brief transitional period is warranted. 12