Homes and Hope Los Angeles v. City of Los Angeles CA2/5

Filed 4/3/23 Homes and Hope Los Angeles v. City of Los Angeles CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

HOMES AND HOPE LOS B308874
ANGELES, LLC, et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. 20STCV07585)

v.

CITY OF LOS ANGELES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Randolph M. Hammock, Judge. Affirmed.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Deputy City Attorney, Scott Marcus, Chief Assistant City
Attorney, Blithe S. Bock, Assistant City Attorney and Sara Ugaz,
Deputy City Attorney for Defendant and Appellant.
Michael N. Sofris for Plaintiffs and Respondents.

_______________________________
 Defendant and appellant City of Los Angeles appeals from
the denial of its anti-SLAPP motion (Code Civ. Proc., § 425.16).
Plaintiffs are landlords who rent units in multiple properties in
the City. They brought this declaratory relief action to challenge
the provisions of the City’s Housing Code which provide for
regular inspections of rental units. Plaintiffs allege the
Systematic Code Enforcement Program (SCEP) is (1) facially
unconstitutional and (2) unconstitutional as applied to them, in
that their properties have been subjected to invasive inspections
in retaliation for their prior litigation activities against the
Housing Department.1
The City takes the position that plaintiffs’ as-applied
challenge arises from the City’s protected petitioning activity –
specifically, its enforcement of SCEP – and that plaintiffs have
failed to establish a probability of prevailing on their action. The
trial court agreed that the as-applied challenge arose from the
City’s protected conduct, but concluded plaintiffs had established
a probability of prevailing, and denied the anti-SLAPP motion.
On the City’s appeal, we agree that, as the term is used in the

1 There is no specific chapter or division of the Housing Code
which uses the Systematic Code Enforcement Program name.
However, the owners of all buildings subject to inspection are
subject to an annual fee to fund the program, and the fee “shall
be known as the ‘Systematic Code Enforcement Program Fee’.”
(L.A. Mun. Code, § 161.352, subd. A.)

The “Housing Department” was previously named the
Housing and Community Investment Department. It was
renamed effective August 8, 2021. (L.A. Ord. No. 187,122.) We
use the current name.

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anti-SLAPP law, the plaintiffs established a probability of
prevailing, and therefore affirm.2
FACTUAL AND PROCEDURAL BACKGROUND
1. Preliminary Observations
Plaintiffs David and Barbara Darwish are married;
plaintiff Eden Darwish is their son. Together, they own or
control more than 20 properties in the City. There are a number
of properties at issue; the Darwishes allege they own the
properties either directly, through trusts, or through companies
or corporations (which also hold ownership either directly or
through trusts). The Darwishes allege that the companies
through which they own the properties have assigned their rights
against the City to plaintiff Homes and Hope, a limited liability
company. The precise owners of each property and the validity of
any purported assignments are not at issue in this appeal.
Unless the context otherwise requires, we refer to the plaintiffs
collectively as the Darwishes.
Neither the complaint, the declarations in support of or in
opposition to the anti-SLAPP motion, nor the briefs, make any
effort to provide a chronological tale of the City’s SCEP
enforcement efforts against the Darwishes. In order to put the
Darwishes’ claims of retaliatory enforcement in context, we
attempt to do so by relying on the (admitted) exhibits in support
of and in opposition to the anti-SLAPP motion, as well as those

2 The trial court also denied the City’s anti-SLAPP motion as
directed to plaintiffs’ facial challenge to SCEP, on the basis that
it did not arise from the City’s protected activity. On appeal, the
City concedes that this ruling was correct. We therefore are
concerned solely with plaintiffs’ claim that SCEP is
unconstitutional as applied.

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portions of the declarations to which objections were not
sustained.
2. The Prior Contentious Relationship Among the
Parties
Before we discuss the prior interactions between the
parties, we observe that, although this lawsuit is about the
enforcement of SCEP, another ordinance – the City’s Rent
Stabilization Ordinance – lurks in the background. Of immediate
importance to the following discussion is that the Rent
Stabilization Ordinance requires landlords to annually register
all of their units subject to that ordinance. (L.A. Mun. Code,
§ 151.05, subd. J.1.) In the underlying dispute, the Darwishes
take the position that SCEP is limited only to units subject to the
Rent Stabilization Ordinance. The City disagrees. We need not
resolve the issue in this appeal. What matters is that the
Darwishes have alleged this connection between the two
ordinances, such that a property’s exemption from the Rent
Stabilization Ordinance also constitutes an exemption from
SCEP.
A. Almont Civil and Criminal Actions
The Darwishes own a rental property known as the
“Almont Property.” According to their complaint, in 2009, the
Housing Department “refused to renew the registration of four
rental units at the Almont property.” The Housing Department
took the position that the property was limited to only two rental
units.3 Barbara Darwish “commenced an action and a writ

3 The record is not clear on this point, but we infer from later
rulings in the Almont action that the City belatedly discovered
that a certificate of occupancy had been issued for only two,
rather than four, units on the property.

4
proceeding” against the Housing Department to compel it to
renew the registration of all four units, which action and writ
proceeding were consolidated into a single action.4 (Darwish v.
City of Los Angeles (Super. Ct. L.A. County, No. BC398784).)
Ultimately, each party was partially successful. Judgment was
entered on October 6, 2011. The trial court held that Barbara
Darwish was entitled to a writ of mandate as the Housing
Department “has a ministerial duty under its Rent Stabilization
Ordinance, to register or renew registration of [the] four rental
units on [her] property, upon payment by [Barbara Darwish] of
the fees required to register four units . . . .” The court further
explained that the City “does not authorize its Housing
Department to use the ministerial provisions of the Rent
Stabilization Ordinance to force a landlord to comply with the
City’s building code.” However, the court also entered judgment
in favor of the City on Barbara Darwish’s cause of action “for
Estoppel.” The court concluded that the City could not be
estopped from requiring a valid certificate of occupancy for the
building, even though it had been used for decades as four units.
On January 28, 2010, while the Almont civil action was
ongoing, the City filed a misdemeanor complaint against David
and Barbara Darwish alleging criminal responsibility for building
code violations at the Almont property – including unlawfully

4 According to the Darwishes’ request for judicial notice in
opposition to the anti-SLAPP motion, exhibit 8 to its request is
the petition for writ of mandate in that action, and exhibit 9 is
the order overruling the City’s demurrer in that action. But
exhibit 8 is instead a first amended complaint in an action
relating to a completely different property and there is nothing
behind the tab for exhibit 9. The parties do not discuss this gap
in the record.

5
using the property without a certificate of occupancy.5 (People v.
Darwish (Super. Ct. L.A. County, 2010, No. 0HY05011) On
February 10, 2012 – three months after the civil case was
resolved – the City dismissed the criminal complaint.
B. Crestmont/Effie Action
The Darwishes own a property with the two addresses 3512
W. Crestmont Avenue and 3511 Effie Street. Both homes are on
a parcel with a single lot number. According to the Darwishes,
there was a “lot cut” line on the map, separating the parcel into
two smaller lots, each with a single-family dwelling.6 On
October 18, 2018, Eden Darwish (the son) brought suit against
the City, for inverse condemnation and declaratory relief,
alleging that the city arbitrarily, capriciously, and negligently
erased the lot cut line between the two properties. (Darwish v.
City of Los Angeles Bureau of Engineering (Super. Ct. L.A.
County, 2018, No. 18STCV02108).) In that case, plaintiff Eden
Darwish alleged the following: the Housing Department
attempted to inspect the properties under SCEP in 2010 and
2014, but the Darwishes refused consent, on the basis that the

5 The criminal complaint was filed on January 28, 2010. The
City’s declarant executed the complaint on December 8, 2009, a
few days after the City’s demurrer was overruled in the civil case
on December 4.

6 The distinction is significant because single family
dwellings are exempt from the City’s Rent Stabilization
Ordinance, but not if multiple single-family dwellings are located
on the same parcel. (L.A. Mun. Code, § 151.02 [definition of
“Rental Units”].) And as previously discussed, the Darwishes’
position is that exemption from the Rent Stabilization Ordinance
also constitutes exemption from SCEP.

6
homes were two separate single-family residences. The City
illegally inspected the property in 2014, finding a number of
Housing Code violations. On the Darwishes’ administrative
appeal, the violations were upheld. Thereafter, the Housing
Department communicated with the Bureau of Engineering and,
at the direction of the Housing Department, the Bureau of
Engineering erased the lot cut line between the properties, “for
the purpose and with the effect of establishing [Housing
Department] jurisdiction over the Crestmont/Effie Property and
to impose the requirements of [the Rent Stabilization Ordinance
on the property] without notice to Eden and an opportunity to be
heard, . . .” Our record does not disclose the status of this
lawsuit.
3. Alleged Retaliatory Enforcement of SCEP
The Darwishes allege that, as a result of their successful
prosecution of the Almont writ of mandate, and their continued
litigation against the City in Crestmont/Effie matter (among
other legal challenges), they have become a target for retaliation
by the Housing Department. They allege the Housing
Department exercises its discretionary authority under SCEP to
conduct repeated inspections of their properties, and cite them for
“picayune and super-technical nit-picking” violations, in order to
justify sanctions against them.7

7 In their complaint, the Darwishes alleged that the Almont
criminal matter was also retaliatory. In their respondent’s brief,
they suggest this allegation was simply an “incidental
allegation,” not a basis of their claim. It may be that the Almont
criminal matter was pleaded as an illustration of the City’s
alleged intent to illegally retaliate against the Darwishes.

7
 Before we discuss the specific allegations, a brief overview
of SCEP is helpful.
A. SCEP
SCEP is best understood in the context of the U.S. Supreme
Court decision in Camara v. Municipal Court of San Francisco
(1967) 387 U.S. 523. In that case, the Supreme Court upheld
administrative searches of real property based on “reasonable
legislative or administrative standards for conducting an area
inspection.” (Id. at p. 538.) “Such standards, which will vary
with the municipal program being enforced, may be based upon
the passage of time, the nature of the building (e.g., a multi-
family apartment house), or the condition of the entire area, but
they will not necessarily depend upon specific knowledge of the
condition of the particular dwelling.”8 (Ibid.)
The administrative standards set forth in SCEP are based
on time alone. SCEP provides that the Department “shall make
a reasonable effort to conduct a periodic inspection once every
four years of all residential rental properties, buildings, units and
structures falling within the scope of this Article.” (L.A. Mun.
Code, § 161.602, subd. A.)
A routine inspection is commenced by service on both the
landlord and tenant of a notice of inspection, at least 30 days in
advance of the inspection date. (L.A. Mun. Code, § 161.601,
subd. B.) The landlord and the tenant may object to the
inspection notice by seeking pre-compliance judicial review. (L.A.
Mun. Code, § 161.601, subd. C.) Alternatively, if consent is
denied, the Housing Department may obtain an inspection

8 Plaintiffs’ facial challenge to SCEP, which is not at issue in
this appeal, raises the question of whether SCEP’s standards for
housing inspections are sufficiently reasonable to satisfy Camara.

8
warrant. (L.A. Mun. Code, § 161.601, subd. D.1.) Code of Civil
Procedure section 1822.51 provides that an inspection warrant
shall be issued upon cause. Cause shall be deemed to exist if
“reasonable . . . administrative standards for conducting a routine
or area inspection are satisfied with respect to the particular
place, dwelling structure [or] premises . . . .” (Code Civ. Proc.,
§ 1822.52.) Once the warrant issues, notice must be served.
(L.A. Mun. Code, § 161.601, subd. D.2.) The landlord or tenant
may seek judicial review of the inspection warrant. (L.A. Mun.
Code, § 161.601, subd. D.4.)
If the inspection reveals a Housing Code violation, the
Housing Department shall issue a “notice and order.” (L.A. Mun.
Code, § 161.409.) This is in a standard form and it orders
correction of the violations. “The order shall inform the owner
that failure to correct the violation may result in additional
inspection fees . . . or rent withholding . . . and/or rent reduction
[pursuant to other regulations].” (L.A. Mun. Code, § 161.702.)
Except as otherwise provided, the order shall give the owner no
more than 30 days to correct the violation. (L.A. Mun. Code,
§ 161.801.) If the violation has not been corrected by the time
specified, the Housing Department General Manager shall hold a
hearing, which is preceded by notice of potential penalties, up to
and including civil penalties and proposed referrals for criminal
prosecution. (L.A. Mun. Code, §§ 161.801, 161.802.) The hearing
results in a General Manager’s written decision, which can order
a rent reduction, a referral for prosecution or any number of
other sanctions.9 (L.A. Mun. Code, § 161.805.) The General

9 The Darwishes state they are particularly concerned that
the General Manager may “[o]rder the building or dwelling units
be accepted into REAP.” (L.A. Mun. Code, § 161.805, subd. (3).)

9
Manager’s decision may be administratively appealed. (L.A.
Mun. Code, § 161.1002.)
B. The Rendall Place Inspection
Plaintiffs own the Rendall Place property; it is located at
1516 N. Rendall Place and has an alternate address of 1517-1519
N. Silver Lake Boulevard. There are four units at the property.
On January 9, 2020, the Housing Department sought a
warrant to inspect all four units at the Rendall property. The
Housing Department represented that the property was last
inspected in 2014, so was “past due for a regulatory inspection,”
and also represented it had received a number of code
enforcement complaints concerning the property. The
Department further claimed it had noticed an inspection for
earlier in the year, but the Darwishes declined. The
Department’s statement of cause explained that it had received
an exemption request from the Darwishes for three of the four
units on the property, on the basis that the units were used for
storage and were not rented out. The Department stated, “It is
the Department policy to accept the statement of the owners
made under penalty of perjury. Acceptance of the three
exemptions, leaves one unit subject to SCEP. However, [the
Department] has received emails from a neighboring property
that claims this property is being rented short-term, which

REAP is the Rent Escrow Account Program. (L.A. Mun. Code,
§§ 162.00, et. seq.) Upon placement into REAP, there is a rent
reduction on the property, and the establishment of an escrow
account into which the (reduced) rent is paid. (L.A. Mun. Code,
§§ 162.04, 162.07.) Funds may be released from the escrow
account for a number of reasons, including correcting the
deficiencies or paying a tenant’s relocation expenses. (L.A. Mun.
Code, § 162.07, subd. B.2.)

10
suggests the invalidity of the exemptions filed by the owner
[citation] and must be investigated.”
On January 15, 2020, the court issued an inspection
warrant as requested.
On January 21, 2020, the Darwishes applied for judicial
review of the inspection warrant on the basis of the exemption it
had obtained for three of the four units on the property.
On February 7, 2020, the court issued a revised warrant,
permitting inspection only of the single unit of the Rendall
property for which an exemption had not been obtained, unit
1517. According to David Darwish’s declaration filed in
opposition to the anti-SLAPP motion, that unit “was a vacant lot
of approximately 500 square feet.”10 The Darwishes had sought
an exemption for that unit as well, but it was denied because the
exemption had not been registered prior to the date of the
warrant request.
The inspection was conducted on February 13, 2020.
According to Darwish, the Housing Department sent “six
inspectors to review substandard conditions on the vacant lot at
Rendall. Those inspectors stated that the Assistant City
Attorney (Deborah Breitbart) ‘hates Barbara Darwish.’ ” The
City agrees that the inspection was contentious; the housing
inspector’s return to the inspection warrant notes that,
“Throughout the SCEP inspection we were constantly being
filmed and criticized by the Darwish family.”

10 David Darwish filed the sole declaration in opposition to
the anti-SLAPP motion. References to “Darwish” alone refer to
David Darwish. Darwish’s use of the phrase “vacant lot” here
appears to be mistaken; it is undisputed that unit 1517 actually
existed; Darwish claimed that the unit was vacant.

11
 On February 19 and, 2020, the Housing Department issued
its notices and orders to comply.11 The order included three
pages of violations – including, but not limited to: unpermitted
construction of a bathroom and kitchen remodel; a “[s]crewed
shut electrical panel”; a “tripping hazard” caused by a damaged
concrete walkway; and the failure to maintain garage doors “in
good repair and in proper open/shut/lock operation.”
According to Darwish’s declaration, “Rendall is an
unoccupied property for which construction permits are issued. A
habitability inspection of a property under construction is
obviously inappropriate.” Darwish supported his declaration
with a number of receipts and permits from the Department of
Building and Safety.12
C. The Baywood Property
The Baywood property, owned by the Darwishes, is located
at 4003 E. Baywood Street.
Simultaneous to the Department’s efforts to inspect the
Rendall property, it was also seeking to inspect the Baywood
property. On January 9, 2020, the Housing Department sought
an inspection warrant for Baywood on the basis that it had last
been inspected in 2015 and was therefore “past due for a

11 Multiple notices and orders were apparently issued because
there were different ownership entities.

12 In our record, the documents each have payment receipts
stapled to the front of them, often blocking the information on the
permits – including the entity to whom the permit was issued
and the property involved. The most that can be said is that the
permits provide support for Darwish’s claim that, before and
during the inspection, the unit at 1517 N. Silver Lake was
undergoing construction for which permits had been issued.

12
regulatory and habitability periodic inspection.” As with Rendall,
the City explained that it had noticed an inspection, and consent
had been refused. On January 15, 2020, the court issued an
inspection warrant. The Darwishes’ challenge to the warrant
was unsuccessful, and the warrant was reissued on February 7,
2020. The property was inspected on February 13, 2020. As with
Rendall, according to the Housing Inspector’s return to the
warrant, “The inspection was conducted under constant criticism,
from the Darwish family that were very hostile from start to
end.”
On February 19, 2020, the Housing Department issued its
notice and order to comply regarding Baywood. The notice
identified five pages of violations that needed remediation,
including, among other things: an unpermitted laundry room
and tub/shower conversion; the absence of a carbon monoxide
detector in a bedroom with a direct vent heater; defective or
damaged tiles on the kitchen counter; defective flooring; defective
insect screens; peeling exterior paint; and zoning violations.
4. The Complaint in the Present Action
On February 24, 2020, a few days after issuance of the
notices and orders to comply for Rendall and Baywood,
respondents filed the present complaint, seeking declaratory and
injunctive relief, challenging the constitutionality of SCEP. Their
single cause of action raised both facial and as-applied
challenges; as we have observed, only the as-applied challenge is
at issue in this appeal. Plaintiffs allege that the Housing
Department uses SCEP as “no more than a Constitutional ‘fig
leaf’ to authorize impermissible random searches for civil and
criminal violations of [the Rent Stabilization Ordinance] and to
confiscate the rental income of property owners in the City

13
pursuant to REAP.” They continue, “The violations against
Plaintiffs arising as a result of random inspections pursuant to
[SCEP] do not concern ‘dangerous conditions’ which can cause
injury or loss of life or area-wide deterioration of residential
property standards . . . . Rather, the cited violations are picayune
and super-technical nit-picking assessed against multi-million-
dollar residences in thriving neighborhoods, designed by
Defendants to justify confiscation of rental income pursuant to
REAP and bogus ‘criminal’ charges pursuant to the Housing Code
. . . .” Specifically, plaintiffs allege they have been cited “for such
minor and immaterial violations as (a) a permanently locked
door, (b) partially torn closet light string, (c) loose kitchen cabinet
hinges, and (d) micron-sized gaps in wood flooring and door
frames.”
The Darwishes allege the City “has subjected the Darwish
Family and their [p]roperties to a pattern and practice of
selective and vindictive enforcement of the Housing Code in
retaliation for the Darwish Family’s exercise of their rights as
property owners and their rights of access to the court[s] of the
State of California.” They allege the City’s selective and
vindictive notices of enforcement, “citations of bogus and
immaterial violations of the Housing Code,” improper assertion of
Rent Stabilization jurisdiction over the properties and threats to
impose REAP on the properties violate the Darwishes’ rights to
“due process of law as guaranteed to them by the Fourteenth
Amendment” of the U.S. Constitution, and the due process
provision of the California Constitution.
The complaint points out that the inspection notices and
orders to comply were filed within weeks of the expected trial
date in the Crestmont/Effie action that Eden Darwish had filed.

14
They specifically allege that the City’s retaliatory motive is
evidenced by the inspection of the Rendall property, which was
under construction at the time.
Plaintiffs’ complaint seeks declaratory and injunctive relief.
5. The City’s Anti-SLAPP Motion
On May 4, 2020, the City filed its anti-SLAPP motion. “An
anti-SLAPP motion presents a means by which a defendant, sued
for conduct in furtherance of the constitutional right of petition or
free speech, can place the burden on a plaintiff to establish that
there is a probability of prevailing on the claim or face early
dismissal of the action. (Code Civ. Proc., § 425.16, subd. (b)(1).)
If the defendant first establishes a prima facie showing that a
claim is based on so-called ‘protected activity,’ the burden
switches to the plaintiff to establish the lawsuit has at least
minimal merit.” (Ratcliff v. The Roman Catholic Archbishop of
Los Angeles (2022) 79 Cal.App.5th 982, 997.)
As we ultimately conclude it is unnecessary to determine
whether the City met its obligation to show the action arose from
its protected activity, we do not discuss the subject at any length.
Suffice it to say, the City argued the complaint, in its entirety,
arose from the City’s administrative enforcement actions and
petitioning activity in the courts.
As to whether the plaintiffs could establish a probability of
prevailing under the statute’s second prong, the City
incorporated the legal arguments of its simultaneously-filed
demurrer, arguing that the plaintiffs’ declaratory relief cause of
action was fatally flawed on a legal basis. The City’s factual
argument against the plaintiffs’ as-applied challenge to SCEP
was minimal, arguing that “the Complaint fails to include any
allegations of retaliatory motive or bias against Plaintiffs.” The

15
City also supported its motion with the declaration of Javier
Melendez of the Housing Department, who explained that
properties are scheduled for SCEP inspection “based on their
geography and the number of years since their last inspection,”
not the identity of the property owner.
6. Plaintiffs’ Opposition
Plaintiffs’ opposition challenged the City’s contention that
the complaint arose from the City’s protected activity. As to the
plaintiffs’ probability of prevailing, the plaintiffs submitted the
Darwish declaration to demonstrate retaliatory motive. Darwish
set forth the history of the Crestmont/Effie action and the Almont
civil action and criminal prosecution.13 He also stated that the
Housing Department has regularly harassed him and his wife
“during the course of numerous unnecessary inspections of real

13 We note that there is some uncertainty in the court’s ruling
on the City’s objections to the Darwish declaration, likely caused
– as the trial court pointed out – by the City’s decision to simply
itemize the paragraphs to which it objected, rather than setting
forth the challenged material. Specifically, defendant’s objection
28 was directed to paragraph 29 of the declaration, while
objection 29 was directed to paragraph 30. Our view of the
court’s ruling is that the language of paragraph 29 which
survived consists of Darwish’s statement that the City Attorney
filed the Almont criminal complaint five days after the court
overruled the City’s demurrer in the Almont civil action; the
criminal complaint named David Darwish even though he had no
management responsibility for the Almont property; and the
same City Attorney who filed the criminal complaint had been
counsel for the City in the Almont civil action.

16
property in which we have an interest.”14 He declared that the
warrant requests and inspections for Rendall and Baywood were
filed within weeks of the expected trial date in the
Crestmont/Effie action, and recounted his experience of the
Rendall and Baywood inspections. He stated that the City does
not threaten to inspect or inspect other properties in the same
areas of the City where the Darwishes’ properties are located.15
He asserted that, as a result of the inspections of Rendall and
Baywood, the Department cited the Darwishes for minor and
immaterial violations, and also for “material non-conforming
conditions which would require new sidewalks and pathways and
might require a complete razing of the structures on the two
[p]roperties.”

14 Darwish asserted that during an August 27, 2014
inspection, an employee of the Housing Department “assaulted”
Barbara Darwish. In the City’s brief on appeal, it argues that its
objection to this statement should have been sustained, as
“[n]owhere does David Darwish’s declaration explain how he
knows personally of the events he describes, meaning it’s a
foundationless statement.” We draw the City’s attention to its
own “work log” for the property in question, attached to the
Melendez declaration, which confirms that at the inspection on
that date, both David Darwish and his wife were present and
involved in the altercation.

15 On appeal, the City argues that this “statement has no
probative value because Mr. Darwish does not bother to establish
the basis for his knowledge or whether those properties were
subject to the SCEP.” But the City’s objection that this
statement lacked foundation was overruled. The City does not
challenge this ruling on appeal.

17
 The City filed a reply, generally reasserting arguments it
had previously made.
7. Further Briefing, Hearing, Ruling and Appeal
At the initial hearing on the motion and demurrer, the
court first expressed a tentative view that the City had not
satisfied its burden that the action arose from protected activity,
but suggested that perhaps the City could meet its burden as to
some allegations of the complaint and not others. The court
requested additional briefing on this issue. The parties filed
supplemental briefing as directed; specifically, the City argued
(in the alternative to its argument directed to the entire
complaint) that the court should strike the allegations relating
only to the plaintiffs’ as-applied challenge to SCEP.
After a second hearing, the court denied the anti-SLAPP
motion (and overruled the City’s demurrer). The court concluded
that certain identified paragraphs of the complaint, relating to
plaintiffs’ as-applied challenge, arose from protected activity.
Turning to whether plaintiffs had established a probability of
prevailing, the court concluded that they had. The court first
expressly recognized that, although the existence of a case or
controversy is sufficient for a declaratory relief cause of action to
survive demurrer, more is required to establish a probability of
prevailing to defeat an anti-SLAPP motion. Specifically, the
plaintiffs must make a prima facie evidentiary showing sufficient
to sustain a judgment in their favor. The court found this
showing had been made. The court identified the following
evidence of retaliatory enforcement: a five-day gap between the
adverse ruling in the Almont civil action and the filing of criminal
charges; vindictive enforcement in the form of citing plaintiff for
minor violations; the Housing Department seeking an inspection

18
warrant on habitability grounds for an unoccupied property
(Rendall); and the Housing Department decision not to similarly
inspect other properties in the same areas as the Darwishes’
properties.
The City filed a timely notice of appeal.
DISCUSSION
On appeal, the City contends the trial court correctly
determined that plaintiffs’ as-applied claim arose from the City’s
protected activity, but the court erred in concluding that
plaintiffs demonstrated a probability of prevailing. In opposition,
plaintiffs argue that the court erred in its determination of
protected activity, but was correct on the probability of
prevailing. We conclude that, apart from whether the court erred
in determining the as-applied challenge arose from protected
activity, the plaintiffs demonstrated a probability of prevailing on
that challenge. We therefore limit our analysis to that issue.
1. Standard of Review
“ ‘To establish a probability of prevailing, the plaintiff
“must demonstrate that the complaint is both legally sufficient
and supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the
plaintiff is credited.” [Citations.] For purposes of this inquiry,
“the trial court considers the pleadings and evidentiary
submissions of both the plaintiff and the defendant [citation];
though the court does not weigh the credibility or comparative
probative strength of competing evidence, it should grant the
motion if, as a matter of law, the defendant's evidence supporting
the motion defeats the plaintiff's attempt to establish evidentiary
support for the claim.” [Citation.] In making this assessment it
is “the court's responsibility . . . to accept as true the evidence

19
favorable to the plaintiff . . . .” [Citation.] The plaintiff need only
establish that his or her claim has “minimal merit” [citation] to
avoid being stricken as a SLAPP.’ ” (Hawran v. Hixson (2012)
209 Cal.App.4th 256, 273-274.) On appeal, our review is de novo.
(Id. at p. 299.)
2. Plaintiffs Have Established a Probability of
Prevailing
“ ‘[A]n anti-SLAPP motion may lie against a complaint for
declaratory relief [citation] . . . .’ [Citation.] Moreover, ‘the mere
existence of a controversy is insufficient to overcome an anti-
SLAPP motion against a claim for declaratory relief. [¶] To
defeat an anti-SLAPP motion, the plaintiff must also make a
prima facie evidentiary showing to sustain a judgment in the
plaintiff’s favor. [Citation.] In other words, for a declaratory
relief action to survive an anti-SLAPP motion, the plaintiff must
introduce substantial evidence that would support a judgment of
relief made in the plaintiff’s favor.’ ” (Mission Springs Water
Dist. v. Verjil (2013) 218 Cal.App.4th 892, 909 (Mission
Springs).)16
A constitutional challenge to a statute or ordinance may be
facial or as-applied. (Sturgeon v. Bratton (2009) 174 Cal.App.4th
1407, 1418.) A facial challenge considers only the text of the
measure itself, not its application to the particular circumstances
of an individual. (Ibid.) An as-applied challenge may seek an

16 On appeal, the City argues that the trial court used the
wrong standard, determining only whether the Darwishes
demonstrated a genuine dispute existed between the parties, and
not whether the Darwishes were likely to prevail. This is simply
incorrect; the trial court cited the Mission Springs case, and
applied its standard.

20
injunction against future application of the statute or ordinance
in the allegedly impermissible manner it is shown to have been
applied in the past. (Id. at pp. 1418-1419.) “ ‘It contemplates
analysis of the facts of a particular case or cases to determine the
circumstances in which the statute or ordinance has been applied
and to consider whether in those particular circumstances the
application deprived the individual to whom it was applied of a
protected right.’ [Citation.] ‘If a plaintiff seeks to enjoin future,
allegedly impermissible, types of applications of a facially valid
statute or ordinance, the plaintiff must demonstrate that such
application is occurring or has occurred in the past.’ ” (Id. at
pp. 1418-1419.)
If a government agency takes an otherwise permissible
administrative action against a plaintiff in retaliation for the
plaintiff’s exercise of a constitutional right – such as the right of
petition – that retaliatory act is unconstitutional. (See Soranno’s
Gasco v. Morgan (9th Cir. 1989) 874 F.2d 1310, 1314 [defendants
allegedly revoked plaintiff’s business permits in retaliation for
plaintiff’s public criticism of defendant’s regulations and
initiation of litigation challenging those regulations].) When a
plaintiff alleges retaliation for the exercise of constitutionally-
protected rights, it must initially show that its protected conduct
was a substantial or motivating factor in the defendant’s
decision. The burden then shifts to the defendant (here the City)
to establish it would have reached the same decision even in the
absence of the plaintiffs’ protected conduct. (Id. at p. 1314.) The
issue is not whether the defendants could have done the identical
act in the absence of the plaintiffs’ conduct, but whether they
would have. (Id. at p. 1315.)

21
 Here, the Darwishes have met their initial burden to show
unconstitutional retaliation by the Housing Department. The
Darwishes brought the Crestmont/Effie action, successfully
obtained writ relief in the Almont civil action, successfully
defended the Almont criminal suit (itself potentially retaliatory),
challenged warrants, and otherwise exercised their right of
petition against the Housing Department. They argue that, in
retaliation for this protected petitioning conduct, the Housing
Department has used SCEP to conduct unnecessary and
inappropriate inspections of their property, citing them for de
minimis violations, in order to cause them additional expenses
and aggravation. They support this claim with evidence of,
among other things, the Rendall inspection. Initially, the
Housing Department sought to inspect all four units, even though
its own policy required accepting the Darwishes’ exemptions for
three of them. When the Darwishes successfully challenged the
warrant and had their three exemptions upheld, the Department
went ahead with an inspection of the fourth unit, even though the
Darwishes offered evidence that the unit was unoccupied and
undergoing construction and therefore should not have been
inspected at all. This unit was inspected by six inspectors (one of
whom allegedly stated that the Assistant City Attorney “hated”
Barbara Darwish), resulting in a notice and order requiring
remediation within 30 days. The notice and order consisted of
pages of alleged violations, both large and small, including claims
that remodeling work was done without final permits being
issued, even though construction was still in progress. Further,
Darwish declared that this targeting of their property for an
unnecessary inspection occurred while no other properties in the
area were similarly inspected. This evidence, if believed by the

22
trier of fact, is sufficient to establish circumstantially retaliatory
enforcement, and thus satisfies the Darwishes’ burden under the
anti-SLAPP statute to establish a probability of prevailing.
The City counters by arguing that its evidence –
specifically, the Melendez declaration – demonstrates that the
identity of the landlord has no bearing on the scheduling of
inspections. As we have explained, on an anti-SLAPP motion, we
do not weigh competing evidence; the motion should be granted
only if the defendant’s evidence defeats the plaintiffs’ as a matter
of law. Here, the City’s evidence simply raises a factual dispute
for trial.
The City also makes a number of legal arguments
addressed to specific constitutional theories. For example, it
argues that the Darwishes lack Fourth Amendment standing to
challenge the inspection process, as it is the tenants, not the
landlords, who have a reasonable expectation of privacy in the
units. (Rental Housing Owners Assn. of Southern Alameda
County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 91.)
But the Darwishes assert that the Rendall unit inspected was, in
fact, unoccupied by a tenant, so the Darwishes would have had a
reasonable expectation of privacy in the unit. More importantly,
these arguments are premature given our conclusion that the
Darwishes have established a reasonable probability of prevailing
on their claim of retaliatory enforcement, which is sufficient to
defeat the anti-SLAPP motion.

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 DISPOSITION
The order denying the anti-SLAPP motion is affirmed. The
City is to pay the Darwishes’ costs on appeal.

RUBIN, P. J.
I CONCUR:

KIM, J.

24
Homes and Hope Los Angeles, LLC et al. v. City of Los Angeles
B308874

BAKER, J., Concurring

I do not agree that the one-sentence assertion of selective
enforcement in the declaration of David Darwish suffices to show
a probability that plaintiff will prevail in this litigation, even
under the low “minimal merit” standard that applies (Bonni v. St.
Joseph Health System (2021) 11 Cal.5th 995, 1009). I do agree,
however, that we should affirm the order denying the anti-
SLAPP motion because the challenged allegations in the
operative complaint do not arise from protected activity. (Park v.
Board of Trustees of California State University (2017) 2 Cal.5th
1057, 1061; see also Baral v. Schnitt (2016) 1 Cal.5th 376, 394.)

BAKER, J.