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Federal Judge Paves Way for Deposition of Mayor's Husband in Housing Lawsuit

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By Jorge Casuso

August 11, 2022 -- A U.S. District Court judge last month paved the way for the deposition of Santa Monicans for Renters' Rights' (SMRR) co-chair Michael Soloff in a lawsuit challenging the City's ban on short-term rentals.

According to the lawsuit filed by NMS and its affiliated companies, Soloff, who is married to Mayor Sue Himmelrich, was "the primary drafter" of the ordinance requiring leases of at least one year.

The order issued on July 26 by U.S. District Judge Fernando L. Aenlle-Rocha denied the City's motion in May to stay Soloff's deposition.

"The court finds Defendants have failed to meet their heavy burden to show that a stay is warranted," Aenlle-Rocha wrote. "The court, therefore, DENIES Defendants' Motion to Stay.

"Having denied the Motion on these grounds, the court need not address the parties' remaining arguments," the judge wrote.

The lawsuit filed by NMS -- one of Santa Monica's largest housing providers -- claims the City's law banning short-term rentals violates the constitutional rights of both landlords and tenants ("Apartment Owners Sue City Over Leasing Requirements," December 16, 2020).

In addition to limiting the length of a lease, the law requires that a unit be rented unfurnished and that tenants provide documentation proving the unit will be their primary residence.

The lawsuit charges the the ordinance is "hasty, ill-conceived, and short-sighted" and constitutes a "taking of private property without just compensation."

It also claims the law violates "equal protection, due process and freedom of movement rights" and "impacts those especially in need of flexible housing options," such as college students from outside the area who rent only while school is in session.

As evidence that Soloff, the former chair of the City's Housing Commission, was the ordinance's primary writer, plaintiff's attorneys point to comments made by Himmelrich at the August 25, 2020 City Council meeting when the law was passed.

“I basically just created an ordinance with the help of Michael, who is much more precise than I am, that doesn’t have any exceptions in it but has everything else in it that this had before we looked at it,” Himmelrich said.

Himmelrich, who like her husband is an attorney, made the statement before she was elected mayor by the Council in December 2020, notes Noah S. Helpern, a partner at Ellis George Cipollone LLP and lead attorney in the case.

"Given the Mayor’s statement -- which we understand to be a reference to Mr. Soloff -- and in light of the District Court’s recent denial of the City’s motion to stay discovery, we look forward to learning more from Mr. Soloff about his role in the drafting process of this improper and unconstitutional ordinance restricting who can live in Santa Monica," Helpern said.

Since NMS served a deposition subpoena on Soloff in February, the two parties have been engaged in a legal tug-of-war, court documents show.

The defendants "served objections with respect to the subpoena," Carol M. Silerberg, the outside attorney representing the City, said in a declaration filed June 3. "I understand Mr. Soloff also objected to the subpoena."

According to Silberberg's declaration, the parties continued a written correspondence and in March 2022 began discussions by telephone "on their discovery disputes, both with respect to the documents and deposition."

In May, the Defendants -- after attempting to resolve the dispute -- filed a motion to stay discovery, said Silberberg, whose firm Berry Silberberg Stokes PC is representing the City and the City Council.

On July 6, NMS filed a motion opposing the Defendants' request, citing it as an example of the City "stonewalling at every turn."

"None of the witnesses noticed for deposition (including the Mandatory Ordinance's primary drafter) has agreed to testify," the plaintiff's motion stated.

"Defendant's should not be permitted to avoid their obligations any longer."

Judge Aenlle-Rocha, who was appointed to the U.S. District Court for the Central District of California by former President Trump shortly before the case was filed, agreed.

Asked to comment on the judge's order, Constance Farrell, the City's spokesperson, issued the following statement:

"The City believes that our ordinance requiring one-year leases for rental housing is legally sound and one strategy to ensure housing is produced for long-term residents.

"We will continue to defend this position as the case proceeds."

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