Vacation Rental Owners and Neighbors of Rancho Mirage v. City of Rancho Mirage CA4/2 (2023) · DecisionDepot
Vacation Rental Owners and Neighbors of Rancho Mirage v. City of Rancho Mirage CA4/2
California Court of Appeal Jul 11, 2023 No. E077118Unpublished
Filed 7/11/23 Vacation Rental Owners and Neighbors of Rancho Mirage v. City of Rancho Mirage CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
VACATION RENTAL OWNERS AND NEIGHBORS OF RANCHO MIRAGE et al., E077118
Plaintiffs and Respondents, (Super.Ct.No. CVRI2100368)
v. OPINION
CITY OF RANCHO MIRAGE et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Russell L. Moore, Judge.
Affirmed.
Law Offices of Quintanilla & Associates, Michael R. Cobden, Steven B.
Quintanilla, Colin D. Kirkpatrick; Colantuono, Highsmith & Whatley, Holly O. Whatley
and Alena Shamos for Defendants and Appellants.
Slovak, Baron, Empey, Murphy & Pinkney, and Shaun M. Murphy for Plaintiffs
and Respondents.
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Timothy Sandefur for Scharf-Norton Center for Constitutional Litigation at the
Goldwater Institute as Amicus Curiae on behalf of Plaintiffs and Respondents Vacation
Rental Owners and Neighbors of Rancho Mirage.
Vacation Rental Owners and Neighbors of Rancho Mirage and Allicia Louisa
Davis (collectively, Vacation Rental) filed a petition for writ of mandamus and a
complaint for declaratory and injunctive relief against the City of Rancho Mirage (the
City) and its city council (the city council) (collectively, the municipal defendants),
challenging the validity of a local ordinance that bans short-term rental units in most
residential neighborhoods in the City. The municipal defendants moved to strike under
Code of Civil Procedure section 425.16, the anti-SLAPP statute, and the trial court denied
the motion.1 (Undesignated statutory references are to the Code of Civil Procedure.) On
appeal, the municipal defendants contend that the trial court erred by concluding that the
claims did not arise from protected activity. We disagree and affirm.
BACKGROUND
A. The City’s Regulation of Short-Term Rentals
In November 2020, a majority of the city council approved and adopted Ordinance
No. 1174 (Ordinance 1174), which became effective the following month. Ordinance
1174 prohibits short-term rentals in all public neighborhoods and in any common interest
development imposing such a restriction. Public neighborhoods are defined as nongated
1 “SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
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neighborhoods not governed by conditions, covenants, and restrictions and in which
residential parcels abut public streets. Common interest developments are defined as any
development subject to the provisions of the Davis–Stirling Common Interest
Development Act, Civil Code section 4000 et seq.
To rent an eligible property as a short-term rental, an owner must obtain a short-
term rental certificate from the City. The certificate must be renewed annually. Any
property owner who had a valid certificate when Ordinance 1174 became effective for a
property that was made ineligible for short-term rentals by the new law would not be
permitted to renew the certificate or to apply for a new certificate.
According to the recitals in Ordinance 1174, the city council adopted it because
the city council found that even though short-term rentals provided the City with
additional tax revenue, “there [were] various secondary negative effects associated with
the use of residential dwellings as short-term rentals in residential neighborhoods.” Staff
members of the City had monitored the impacts that short-term rentals had on
neighborhoods and had received complaints and feedback concerning short-term rentals.
The City’s staff recommended that the city council adopt a ban on short-term rentals as
outlined in Ordinance 1174 “to preserve the public health, safety, welfare, and character”
in public neighborhoods and in common interest developments that had “determined that
short-term rentals are not a permitted use of property.”
B. The Litigation
Vacation Rental Owners and Neighbors of Rancho Mirage is a nonprofit
organization whose members include owners of short-term rental units. The
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organization’s “exclusive purpose is to advance and protect the interests of law-abiding
[short-term rental] operators” in the City. Davis owns a property in the City that was
permitted to be used as a short-term rental before Ordinance 1174 became effective.
In January 2021, Vacation Rental filed a 153-page verified petition for writ of
mandate and a complaint for declaratory and injunctive relief (the petition) against the
City, the city council, and individual city council members (the individual defendants).2
The petition contained general allegations outlining the City’s historic treatment of short-
term rentals, starting in 2011, when they were allowed.
Vacation Rental generally alleged that “Ordinance 1174 appear[ed] out of
nowhere” and was “a complete about-face from the City’s previous proclamations that
the [short-term rental] program is successful and that [short-term rentals] do not
negatively affect neighborhoods.” (Boldface and initial capitalization omitted.)
According to Vacation Rental, Ordinance 1174 “is contrary to every stated City policy
and goal” and was adopted despite the fact that the City had otherwise stated that the
short-term rental program was successful.
Vacation Rental initiated the action to “enjoin the enforcement of and preclude the
operation of” Ordinance 1174. To that end, the petition alleged the following 13 claims:
(1) Ordinance 1174 is unconstitutionally vague; (2) Ordinance 1174 violates local and
state land use and zoning mandates; (3) Ordinance 1174 is inconsistent with the City’s
2 The petition was filed by numerous other entities and one other individual. Only Davis and Vacation Rental Owners and Neighbors of Rancho Mirage have appeared as respondents on appeal.
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general plan; (4) the City failed to comply with the California Environmental Quality Act
in enacting Ordinance 1174; (5) Ordinance 1174 violates the Subdivision Map Act and
unlawfully delegates duties; (6) Ordinance 1174 is void because it was not adopted
according to state and local procedural requirements; (7) the City failed to give proper
notice before enacting Ordinance 1174; (8) Ordinance 1174 violates state and federal
procedural due process; (9) Ordinance 1174 violates state and federal substantive due
process; (10) Ordinance 1174 is unconstitutional because it is not supported by any
consists of “(1) any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized by law, (2)
any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law, (3) any written or oral statement or writing made in a place
open to the public or a public forum in connection with an issue of public interest, or (4)
any other conduct in furtherance of the exercise of the constitutional right of petition or
the constitutional right of free speech in connection with a public issue or an issue of
public interest.” (§ 425.16(e).) The moving defendant bears the burden of demonstrating
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that the plaintiff’s claims arise from the defendant’s protected conduct. (Laker, supra, at
p. 760.) “‘The only means specified in section 425.16 by which a moving defendant can
satisfy the requirement is to demonstrate that the defendant's conduct . . . falls within one
of the four categories described in’” section 425.16(e). (Vasquez, supra, at p. 422, italics
added.)
The municipal defendants have failed to carry that burden on appeal. As Vacation
Rental correctly points out, the municipal defendants do not identify on appeal “the
specific category in Section 425.16(e) on which [they] rel[y] to support [their] motion.”
Because that is “[t]he only means” by which the municipal defendants can prevail at the
first step of the analysis (Vasquez, supra, 1 Cal.5th at p. 422), the municipal defendants
have failed to carry their burden on appeal of demonstrating that the trial court erred by
concluding that Vacations Rental’s claims do not arise from protected activity.3
In any event, the claims at issue here do not arise from the municipal defendants’
acts in furtherance of their right of free speech or petition in any of the four statutory
categories. (§ 425.16, subd. (e)(1)-(4).) For purposes of the anti-SLAPP statute, “a claim
is not subject to a motion to strike simply because it contests an action or decision that
was arrived at following speech or petitioning activity, or that was thereafter
communicated by means of speech or petitioning activity. Rather, a claim may be struck
only if the speech or petitioning activity itself is the wrong complained of, and not just
3 The municipal defendants’ anti-SLAPP motion, like their appellate briefs, did not identify the category or categories of protected conduct in section 425.16(e) on which they meant to rely, but their reply in support of the motion did address the issue.
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evidence of liability or a step leading to some different act for which liability is asserted.”
(Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060
(Park).)
In determining whether the claims arise from protected activity, we “‘consider the
elements of the challenged claim and what actions by the defendant supply those
elements and consequently form the basis for liability.’” (Bonni, supra, 11 Cal.5th at
p. 1009.) In cases involving mixed causes of action—“that is, a cause of action that rests
on allegations of multiple acts, some of which constitute protected activity and some of
which do not”—“the moving defendant must identify the acts alleged in the complaint
that it asserts are protected and what claims for relief are predicated on them. In turn, a
court should examine whether those acts are protected and supply the basis for any
claims.” (Id. at p. 1010.) In Bonni, the Supreme Court held that this approach applies
even when the motion seeks to strike entire causes of action. (Ibid.) Bonni rejected the
defendants’ argument that in such cases courts should “consider whether the gravamen of
the entire cause of action was based on protected or unprotected activity.” (Id. at
p. 1011.)
Our Supreme Court has repeatedly affirmed the principle that “‘[a]cts of
governance mandated by law, without more, are not exercises of free speech or petition.’”
(Park, supra, 2 Cal.5th at p. 1064; Vasquez, supra, 1 Cal.5th at p. 425.) On appeal, the
municipal defendants appear to concede that the city council’s adoption and enactment of
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Ordinance 1174 constituted an act of governance that is not protected activity under
section 425.16(e).4 (Park, at p. 1064.)
All of Vacation Rental’s claims arise from acts of governance, so they do not arise
from protected activity. The complaint seeks a writ of mandate and injunctive relief
overturning Ordinance 1174 and prohibiting its enforcement, as well as a declaration that
Ordinance 1174 violates plaintiffs’ rights. The grounds for those claims for relief—the
elements of plaintiffs’ claims—are all features of Ordinance 1174 itself, such as that it is
unconstitutionally vague and that it constitutes an unconstitutional taking. No protected
act by the municipal defendants supplies any element of any claim alleged in the
complaint. The trial court therefore correctly ruled that the claims do not arise from the
municipal defendants’ protected activity.
The municipal defendants’ appellate briefs contain no intelligible argument to the
contrary. In particular, the municipal defendants’ briefs make no intelligible attempt to
do what the Supreme Court in Bonni explained a moving defendant must do, namely,
“identify the acts alleged in the complaint that it asserts are protected and what claims for
relief are predicated on them.” (Bonni, supra, 11 Cal.5th at p. 1010.) The municipal
defendants’ briefs do not identify any act by the municipal defendants that supplies any
element of any claim in the complaint.
4 In the anti-SLAPP motion, the municipal defendants argued to the contrary that “[e]very single cause of action in the Petition arises from the City’s right, as a public agency, to enact legislation and every cause of action is based on the content of Ordinance 1174; this is protected speech.”
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For all of these reasons, we conclude that the municipal defendants did not carry
their burden of demonstrating that Vacation Rental’s claims arose from protected activity
under section 425.16(e). Because the municipal defendants did not carry their burden at
the first step of anti-SLAPP analysis, we need not and do not address the second step.5
We conclude that the trial court did not err by denying the anti-SLAPP motion.
DISPOSITION
The order denying the municipal defendants’ anti-SLAPP motion is affirmed.
Vacation Rental shall recover its costs of appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
CODRINGTON Acting P. J. SLOUGH J.
5 We deny the municipal defendants’ request that we take judicial notice of a minute order entered after the superior court’s ruling on the anti-SLAPP motion. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) The evidence is not relevant to the first step of the anti-SLAPP analysis and thus is not relevant to any issue addressed on appeal. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)