The document discusses a court order denying a request for a preliminary injunction against a city ordinance prohibiting short-term rentals of less than 30 days. The court found petitioners failed to show they would likely succeed on the merits of their claim that the ordinance violates the Coastal Act, which aims to protect coastal resources and provide public access. The court also noted petitioners did not demonstrate the ordinance requires a coastal development permit. Overall, the court determined petitioners did not meet the burden of proof required to be granted a preliminary injunction.

1. Short termrentalsprohibited.
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
amendedthe Hermosa Beach Municipal Code ("HBMC") Title 17 (the "Zoning Code") to include
the followingprohibition:
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 theCase
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,

2. 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.)

3. [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.3dat 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.
CaliforniaCoastal 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 legislativecontinuation of the coastal protection efforts commenced when the People passed
Proposition20, the 1972initiative 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
construedto 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."

4. 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."
Oncethe LUP is certified, the Commission reviews the implementing actions to determine
whetherthose items are sufficient to implement the policies ofthe certified LUP. (Pub. Res. Code
§30513.) If the Commission determines the implementing actions are adequate, it certifies the
LCP. As with the LUP, ifthe Commission denies certification of the implementing actions, it may
suggestmodifications that, if adopted, would result in certification ofthe 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 Vistav. 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
Commissionis 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 LUP. The Commission
does not normally have the authority to change the LUP through its own action or to require the
local governmentto 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
governingbody adopts the proposed LCP as being in conformity with provisions ofthe Act. (Pub.
Res. Code § 30510.) The local government then submits the LCP to the Coastal Commission for
review and certification. (Pub. Res. Code §3051l(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.3dat 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 ofthe coastal zone environment as well as expanding
and enhancingpublic access. (Citizens of Goleta Valleyv. Board ofSupervisors, (1990) 52 Cal.3d
553, 571.)
(Pub. Res. Code §30108.6.)

5. 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 Injunctionsc.
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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6. 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 MeritsA.
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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7. 2
The Court notes that in reply, Petitioners concede that they "d[o] not take the position that the enactment of the
Ordinanceconstituted 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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8. 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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9. - 5 -
AMYD.HOGUE
JUDGE OF THE SUPERIOR COURT
Dated: -----
For the foregoing reasons, the Court DENIES the request for a preliminary injunction.
ConclusionIV.
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." (AmericanAcademy ofPediatrics v. Vande 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 InjunctionB.
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 ofAgoura 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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