Baba v. Board of Sup'Rs of San Francisco

• Decision Date: 29 November 2004
• Docket Number: No. A103446.,A103446.
• Citation: 21 Cal.Rptr.3d 428,124 Cal.App.4th 504
• Court: California Court of Appeals Court of Appeals
• Parties: John BABA, et al., Plaintiffs and Respondents, v. BOARD OF SUPERIVSORS OF the CITY & COUNTY OF SAN FRANCISCO, et al., Defendants and Appellants.

21 Cal.Rptr.3d 428

124 Cal.App.4th 504

John BABA, et al., Plaintiffs and Respondents, v. BOARD OF SUPERIVSORS OF the CITY & COUNTY OF SAN FRANCISCO, et al., Defendants and Appellants.

No. A103446.

Court of Appeal, First District, Division 2.

November 29, 2004.

Dennis J. Herrera, City Attorney Wayne K. Snodgrass, Deputy City Attorney K. Scott Dickey, Deputy City Attorney Sherri Sokeland Kaiser, Deputy City Attorney, for Appellants.

Andrew J. Wiegel, Clifford E. Fried, San Francisco, Wiegel & Fried, for Respondents.

HAERLE, J.

I. INTRODUCTION

The superior court issued a writ of mandamus barring enforcement of two provisions of the San Francisco Residential Rent Stabilization and Arbitration Ordinance. (S.F. Admin. Code, ch. 37 (hereafter, the Rent Ordinance).)¹ The superior court found that section 37.10A(c) and section 37.10A(g) of the Rent Ordinance are unconstitutional on their face. We affirm.

II. FACTUAL AND PROCEDURAL HISTORY

A. The Rent Ordinance and the Daly Amendments

The Rent Ordinance was adopted in June 1979 in order to address problems created by a shortage of decent, safe and sanitary housing in the City and County of San Francisco. (§ 37.1.) The Ordinance addresses these problems by, among other things, imposing rent increase limitations for tenants in occupancy (§ 37.3) and limiting the grounds pursuant to which a landlord may lawfully recover or endeavor to recover possession of a residential rental unit from a tenant. (§ 37.9.)

One basis for a tenant's lawful eviction is so that the landlord or landlord's close relative may use the unit as his or her principal residence. (§ 37.9(a)(8).) This "owner move-in" provision of the Rent Ordinance is consistent with the state Ellis Act which provides that, with limited exceptions, a statute, ordinance or regulation may not "compel the owner of any residential real property to offer, or to continue to offer, accommodations in the property for rent or lease...." (Gov.Code, § 7060, subd. (a).) However the Rent Ordinance also contains provisions designed to ensure that a landlord cannot avoid controls imposed by the Rent Ordinance by evicting a tenant, pursuant to the owner move-in provision and/or the Ellis Act, and then re-renting the unit to a new tenant who does not possess the protections under the Rent Ordinance that the original tenant could have claimed. (§ 37.9(a)(8).)

In August 2001, the San Francisco District Attorney's Office, which is charged with enforcing the Rent Ordinance, contacted San Francisco Supervisor Daly and shared concerns about problems the office encountered while investigating illegal evictions. For example, the district attorney's office was concerned by a practice it referred to as the "Ellis bluff" which it described as follows: "[A] landlord threatens, but never actually files, an Ellis Act eviction notice in order to recover a rental unit from a tenant. If the tenant vacates the unit, the landlord then receives the benefit of an Ellis eviction without any of the consequences, and can re-rent the unit at market rate." The office had also allegedly encountered cases in which tenants who were not represented by counsel had been subjected to owner move-in or Ellis Act evictions and had waived their rights under the Rent Ordinance, purported to release landlords from their obligations under the Ordinance and/or agreed not to cooperate with the district attorney or the Rent Board.

Supervisor Daly introduced proposed amendments to the Rent Ordinance intended to remedy the problems about which the district attorney's office had complained. On April 22, 2002, the San Francisco Board of Supervisors passed ordinance No. 57-02 which amended sections 37.9, 37.9B, and 37.10A of the Rent Ordinance. Ordinance No. 57-02 was approved by then Mayor Brown on May 2, 2002. (Ord. No. 57-02, File No. 011575.) Like the parties and other individuals involved in this case, we refer to amendments effectuated by this ordinance as the Daly Amendments. Several of the changes effectuated by the Daly Amendments were made to section 37.10A of the Rent Ordinance which is entitled "Misdemeanors and Other Enforcement Provisions."

For example, section 37.10A(c) now states: "It shall be unlawful for a landlord or for any person who willfully assists a landlord to request that a tenant move from a rental unit or to threaten to recover possession of a rental unit, either verbally or in writing, unless: [¶] (1) The landlord in good faith intends to recover said unit under one of the grounds enumerated in Section 37.9(a) or (b); and [¶] (2) Within five days of any such request or threat the landlord serves the tenant with a written notice stating the particular ground under Section 37.9(a) or (b) that is the basis for the landlord's intended recovery of possession of the unit."

Section 37.10A(g), which was also amended, states: "Except as provided in this subsection, it shall be unlawful for a landlord, or for any person who willfully assists a landlord, including the landlord's attorney or legal representative, to seek or obtain a tenant's agreement not to cooperate with an investigation or proceeding by any administrative or law enforcement or other governmental agency under this Chapter, or to otherwise seek or obtain a tenant's waiver of rights under this Chapter. Any waiver of rights by a tenant under this Chapter shall be void as contrary to public policy unless the tenant is represented by independent counsel and the waiver is approved in a Court-supervised settlement agreement, or by a retired judge of the California Superior Court sitting as a mediator or arbitrator by mutual agreement of the tenant represented by independent counsel and the landlord. Any settlement agreement shall identify the judge, mediator, or arbitrator reviewing the settlement, all counsel representing the parties, and any other information as required by the Board. The landlord shall file a signed copy of the settlement agreement with the Board within ten days of execution. Unless otherwise required by the Board, the copy of the agreement filed with the Board shall redact the amount of payments to be made to tenants."

Another change effectuated by the Daly Amendments was the addition of section 37.10A(i) which states: "Any person who violates Section 37.10A(a), (b), (c), (d), (g) or (h) is guilty of a misdemeanor and shall be punished by a mandatory fine of one thousand dollars ($1,000), and in addition to such fine may be punished by imprisonment in the County Jail for a period of not more than six months. Each violation shall constitute a separate offense."

B. The Present Action

On October 10, 2002, John Baba, Philip Brady, Sergio Iantorno, John Zanghi and Arnold W. Evje, II (respondents) filed an amended petition for administrative mandamus (the petition) and a complaint for declaratory and injunctive relief against the San Francisco Board of Supervisors, the Rent Stabilization and Arbitration Board and the City and County of San Francisco (appellants). According to the petition, Baba and Brady are residential tenants of property located in San Francisco, Iantorno is a San Francisco landlord, and Zanghi and Evje practice law in San Francisco. Together, they challenged several of the Daly Amendments, including section 37.10A(c) and 37.10A(g), on a variety of grounds.

The trial court issued an alternative writ on October 11, 2002, and set the matter for briefing and hearing. Thereafter, on April 7, 2003, the Honorable James J. McBride denied the petition in part, finding that some of the challenges advanced did not constitute controversies that were sufficiently ripe for judicial determination. However, the court granted the petition with respect to section 37.10A(c) and section 37.10A(g). It found that section 37.10A(c) is unconstitutional on its face because it criminalizes speech that is protected by the First Amendment and by article 1, section 2 of the California Constitution and that it is also void for vagueness. The court also found that section 37.10A(g) is invalid because it violates "a person's fundamental right to represent himself or herself in a proceeding that may or may not ripen into a lawsuit." The court reasoned that a person has a fundamental right to appear in court in propria persona and that the right to represent oneself outside the courthouse is just as fundamental.

A writ of mandamus prohibiting appellants from enforcing section 37.10A(c) and section 37.10A(g) was issued on May 29, 2003. Appellants filed their timely notice of appeal on July 22, 2003.

III. DISCUSSION

A. Standard of Review

Respondents have advanced facial challenges to sections 37.10A(c) and 37.10A(g). "A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.]" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 40 Cal. Rptr.2d 402, 892 P.2d 1145.) We review de novo both the trial court's interpretation of the challenged provisions and the constitutional issues it resolved. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432, 101 Cal. Rptr.2d 200, 11 P.3d 956; Herbst v. Swan (2002) 102 Cal.App.4th 813, 816, 125 Cal.Rptr.2d 836.)

B. Section 37.10A(c)

Appellants challenge the trial court's findings that section 37.10A(c) violates free speech guarantees and is vague. They contend that the speech which is regulated by this provision falls outside the protection of the First Amendment and that it is not vague because its language is "easily understood with resort to simple common sense." Because we agree with the trial court that the provision suppresses constitutionally protected speech, we need not address the void for vagueness doctrine.

1. Governing principles and issues presented

The First Amendment of the United States Constitution provides in part that "Congress shall make no law ......