Abramson v. City of West Hollywood

• Decision Date: 30 June 1992
• Docket Number: No. B059370,B059370
• Court: California Court of Appeals Court of Appeals
• Parties: Mayme ABRAMSON, Plaintiff and Appellant, v. CITY OF WEST HOLLYWOOD et al., Defendants and Respondents.

Page 507

9 Cal.Rptr.2d 507

7 Cal.App.4th 1121

Mayme ABRAMSON, Plaintiff and Appellant, v. CITY OF WEST HOLLYWOOD et al., Defendants and Respondents.

No. B059370.

Court of Appeal, Second District, Division 1, California.

June 30, 1992.

Certified for Partial Publication ^*

[7 Cal.App.4th 1123] Mayme Abramson, in pro. per.

Michael Jenkins, City Atty., Richards, Watson & Gershon, Marsha Jones Moutrie, and Efrat M. Cogan, Los Angeles, for defendants and respondents.

SPENCER, Presiding Justice.

Mayme Abramson appeals from the judgment entered following denial of her petition for a writ of mandate (Code Civ.Proc., § 1094.5) challenging a resolution of respondent City of West Hollywood Rent Stabilization Commission ("Commission"), ¹ which denied her application for a rent increase. We find that City calculated Abramson's gross rental income in an unauthorized manner and therefore reverse.

BACKGROUND

Abramson is an elderly widow who owns a nine-unit apartment building in West Hollywood. She resides in one of the units. In 1985, the newly created City of West Hollywood enacted a rent stabilization ordinance ("Ordinance"), the purpose of which is "to protect tenants from unreasonable and excessive rents ... and at the same time to ensure a just and reasonable return to landlords." (West Hollywood Municipal Code, § 6401.) ²

Under Ordinance, rent increases are automatically permitted which provide landlords with an amount not to exceed 75 percent of the increase in the Consumer Price Index, and when a rental unit is voluntarily vacated after five years or more. (§§ 6409-6410.) Upon application, City is required to "permit rent increases in the MAR [maximum allowable rent] such that the landlord's net operating income ³ shall be increased by sixty percent (60%) of the percentage increase in the Consumer Price Index [CPI], over the base year [of 1983]." (§ 6411(C)(1)(h).)

In February 1988, Abramson filed Rent Increase Application No. I-048 (hereafter "I-048"), seeking an increase pursuant to section 6411(C). Based on the procedure established by Ordinance and its accompanying regulations, the matter was first heard by a hearing examiner, and then appealed to Commission. On April 12, 1989, Commission partially granted I-048, permitting an increase in Abramson's MAR. ⁴

On October 31, 1989, Abramson filed Rent Increase Application No. I-061 (hereafter "I-061"), which is the subject of this appeal. The application papers provided by City included a form requesting the landlord's rental income for both the base year of 1983 and for the "current year." Current year was defined as "twelve consecutive months of [the applicant's] choosing within the fourteen months immediately preceding the filing." The instructions required that, in calculating current income, the landlord assume all units "were occupied by tenants for the entire year" and "estimate a fair market value" of units on which "no rent or partial rent [was being received] due to owner, relative or employee In a decision filed on February 1, 1990, the hearing examiner rejected the current year rental income figure provided by Abramson. The hearing examiner found that, in order to avoid "duplicate increase[§ in rent] which would be excessive and thereby would violate the express provisions of [ ] Ordinance," it was necessary to calculate the current year's gross rental income by annualizing the MAR granted in I-048. ⁶ Accordingly, it was determined that an additional $5,725.60 should be included in Abramson's current year income, and she was therefore not entitled to an increase in her MAR. ⁷

                occupancy."   Pursuant to these instructions, Abramson selected November 1, 1988, through October 31, 1989, as her current year, and stated that her income was $57,911.62. 5
                

Abramson appealed the hearing examiner's decision to Commission, arguing, inter alia, that the MAR of I-048 had been annualized without notice, and that such annualization was contrary to City's instructions for rent increase applications, which she had scrupulously followed. In a resolution adopted on March 28, 1990, Commission rejected Abramson's argument, agreeing with the hearing examiner that Abramson's gross rental income should be calculated by annualizing the MAR increases granted in I-048. The resolution provided an example of how duplicative rent increases might result from failure to annualize, ⁸ and found that annualization was supported by Natter v. Palm Desert Rent Review Com. (1987) 190 Cal.App.3d 994, 235 Cal.Rptr. 718. ⁹

On June 25, 1990, Abramson filed a petition for a writ of mandate challenging City's resolution in I-061. The petition was denied at a hearing conducted on April 26, 1991. A judgment denying the petition was filed on May 13, 1991.

DISCUSSION

Introduction

Abramson, in propria persona, has raised 11 enumerated contentions challenging the trial court's denial of her petition for a writ of mandate. Many of her contentions are duplicative; in other situations, a single heading contains more than one legal contention.

In the published portion of this opinion, we deal with Abramson's primary contention--that annualization of her MAR was unauthorized--and with a minor mathematical error, which has been conceded by City. The remaining contentions require only brief discussion, and are addressed in the unpublished portion of this opinion.

Calculation of Income

The main dispute between the parties is whether, pursuant to section 6411, Abramson's income for the current year of I-061 should be calculated with reference to actual rent receipts or by annualizing the We start with the language which governs the calculation of gross rental income, section 6411(C)(1)(b). "Pursuant to established principles, our first task in construing a statute ¹⁰ is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.] Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. [Citations.] A statute should be construed whenever possible so as to preserve its constitutionality. [Citations.]" (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)

MAR granted in I-048. Because we find no basis in section 6411 or any other provision of City's rent control scheme to permit annualization, we hold that City erred in its determination of I-061.

"The contemporaneous construction of a new enactment by the administrative agency charged with its enforcement, although not controlling, is entitled to great weight. [Citations.]" (Id. at pp. 1388-1389, 241 Cal.Rptr. 67, 743 P.2d 1323.) "[T]he final interpretation of a statute is a question of law and rests with the courts. [Citations.]" (Department of Water & Power v. Energy Resources Conservation & Development Com. (1991) 2 Cal.App. 4th 206, 220, 3 Cal.Rptr.2d 289.)

"Income," as utilized throughout section 6411(C)(1)(b), is commonly defined as "a gain or recurrent benefit that is usu[ally] measured in money and for a given period of time...." (Webster's Third New Internat. Dict. (3d ed. 1976) p. 1143.) As applied here, such a definition would at least imply the rent actually received during the current year.

Furthermore, the instructions supplied to Abramson by City specifically define "current year" to include any 12 of the preceding 14 months. In calculating income based on the actual receipts of the 12 months immediately prior to her application, Abramson was doing exactly what the instructions required.

City advances two reasons why Ordinance should be read to permit an annualized calculation of MAR. Neither reason has merit.

First, City asserts the language of subdivisions (i) and (iv) of section 6411(C)(1)(b), providing that units be deemed 100 percent occupied and that uncollected rents due to vacancies and bad debts be included as income, "authorizes [it] to consider income which the landlord will receive in connection with the use or occupancy of the building." (Emphasis in original.) While it is true that Ordinance creates a legal fiction with respect to occupancy and uncollected rents, there is no basis to extend this fiction to permit annualization of MAR. Indeed, the doctrine expressio unius est exclusio alterius ¹¹ would appear to preclude such annualization.

Second, City places great reliance on Natter v. Palm Desert Rent Review Com., supra, 190 Cal.App.3d 994, 235 Cal.Rptr. 718. In Natter, a rent control ordinance required that rent increases be calculated The landlord in Natter sent notice to tenants in November 1982, indicating that their rent would be increased effective February 1983. In a subsequent hardship application, the landlord asserted that his base rate should be calculated by annualizing the rate in effect in April 1983. This position was rejected at the administrative and superior court levels. (Id. at pp. 999-1001, 235 Cal.Rptr. 718.)

                based on the rates charged on April 28, 1983.  (Id. at p. 997, 235 Cal.Rptr. 718.)   However, guidelines to the ordinance specified that the base year for calculating rents was " 'calendar year 1982 or the most recent fiscal year ending on or prior to April 30, 1983.' "  (Id. at p. 998, 235

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