Cobb v. City & County of San Francisco
| Decision Date | 09 May 2002 |
| Docket Number | A095196,1 |
| Court | California Court of Appeals Court of Appeals |
| Parties | JONATHAN COBB, Petitioner, v. CITY AND COUNTY OF SAN FRANCISCO RESIDENTIAL RENT STABILIZATION AND ARBITRATION BOARD, Respondent; RICHARD PASSALACQUA, Real Party in Interest. A095196 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE Filed |
Trial court: San Francisco Superior Court
A. James Robertson, II
Counsel for petitioner: MICHAEL C. HALL Law Offices of Michael C. Hall
Counsel for respondent: LOUISE H. RENNE City Attorney RANDY RIDDLE K. SCOTT DICKEY Deputy City Attorneys
Jones, P.J.
Jonathan Cobb appeals a judgment denying his petition for writ of administrative mandate (Code Civ. Proc.,1 1094.5) reviewing a rent control decision of the San Francisco Residential Rent Stabilization and Arbitration Board (Rent Board). Cobb sought to set aside the Rent Board's decision establishing the base rental of his tenant, Richard Passalacqua, as $600. He contends he is entitled to a base rental of $1,500 under the Costa-Hawkins Rental Housing Act (Civ. Code, 1954.50 et seq.; Costa-Hawkins Act).
FACTUAL BACKGROUND2
Since 1984, Cobb has owned and resided in one unit of a four-unit apartment building. Sometime in 1984, he rented another unit to Frances Restoni for $440 per month. Cobb acknowledged that he lost the Restoni rental agreement, but, according to Cobb, it was a standard form rental agreement, which provided that a "Tenant shall not assign this agreement or sublet any portion of the premises without prior written consent of the Owner."
Cobb never increased Restoni's rent. In March 1996, Restoni's son, Richard Passalacqua, moved into her apartment without obtaining Cobb's permission. According to Passalacqua, his son, Joseph, then 15 years old, also began living half-time in the apartment. According to Cobb, whenever he asked about Passalacqua's plans, Restoni and Passalacqua both replied that Passalacqua was staying only temporarily.
In May 1998, Restoni vacated her apartment due to ill health. Thereafter, Cobb accepted rent from Passalacqua, who had not paid him rent as long as Restoni was living in the apartment. Effective November 1, 1998, the rent was raised to $600 per month, pursuant to an oral agreement between Cobb and Passalacqua. Passalacqua thought the increase was "fair."
In late spring 1999 Joseph, then 18 years old, began living full time in the apartment. In June 1999 Cobb served Joseph with a "6.14 Notice." The notice informed Joseph that "(1) [w]hen the last tenant vacates the premises, a new tenancy is created for purposes of determining the rent under the [San Francisco Residential Rent Stabilization and Arbitration Ordinance (Rent Ordinance)]; and (2) [a]ll new co-tenants or occupants are not considered tenants under subsection (a) of Section 6.14 of the [Rent Board's] Rules and Regulations." The notice included a copy of Rule 6.14, as amended March 24, 1998.3 Under the Rent Ordinance, a new tenancy permits a landlord to increase the rent without the Rent Ordinance limitations on rental increases to an in-place tenant. (S.F. Admin. Code, 37.3(d)(1)(a).)
It is undisputed that Cobb never served Passalacqua with a "6.14 Notice."
By letter dated June 16, 1999, Cobb's attorney admonished Passalacqua of his obligation to pay his rent in a timely fashion, and failing to do so, "your landlord may lawfully terminate your rental agreement on the ground that you have habitually paid the rent late."
In mid-September 1999, Cobb notified Passalacqua that, effective November 1, 1999, the rent would increase to $1,500 per month, in accordance with the Costa-Hawkins Act. Passalacqua then petitioned the Rent Board for arbitration on the grounds that the rent increase to $1,500 was beyond the limits permitted under the Rent Ordinance. Cobb responded that the rent increase was not governed by the Rent Ordinance but by the Costa-Hawkins Act because Passalacqua moved into the apartment after January 1996 and Restoni, its original occupant, had since vacated it.
The section of the Costa-Hawkins Act on which Cobb relied states: "Where the original occupant . . . who took possession of the . . . unit pursuant to the rental agreement with the owner no longer permanently reside[s] there, an owner may increase the rent by any amount allowed by this section to a lawful sublessee or assignee who did not reside at the . . . unit prior to January 1, 1996." (Civ. Code, 1954.53, subd. (d)(2).)
PROCEEDINGS BEFORE THE RENT BOARD
The Rent Board hearing officer concluded that the Costa-Hawkins Act was inapplicable because Passalacqua was not a sublessee or assignee of Restoni. Instead, he became Cobb's tenant when Cobb began accepting rent from him in May 1998. The hearing officer also observed that "there is not compelling evidence" the original lease contained a prohibition against subleases or assignments without the landlord's prior written permission. But even if it did, the hearing officer concluded that Cobb waived any prohibition in the original rental agreement by his conduct. The landlord accepted rent, including a rent increase, from Passalacqua; he sent him notices of habitually late rent payments; and, despite knowing Passalacqua was living in the apartment as early as 1996, failed to take any action to confirm that Passalacqua's residency was temporary.
The hearing officer granted Passalacqua's petition and ordered that his current base rent remain $600, with an anniversary date of "November." The order does not give a year for the anniversary date, but it is presumably November 1998, when Passalacqua's rent was increased to $600.
Cobb appealed the hearing officer's decision to the Rent Board, which accepted the appeal and remanded it for a hearing on the issues of waiver and estoppel. Specifically, the hearing officer was to determine: (1) Did Cobb's acceptance of rent from Passalacqua after Restoni moved out constitute a waiver of the Costa-Hawkins Act, insofar as Cobb did not receive written notice of Passalacqua's occupancy of the apartment and thereafter accepted rent? (2) Was Passalacqua estopped from asserting that Cobb waived his statutory right to a market rate increase because he attempted to deceive Cobb into accepting rent by claiming that he was residing in the apartment only temporarily?
The hearing officer granted Passalacqua's petition on remand after concluding Cobb failed to establish waiver or estoppel. When Cobb's appeal to the Rent Board was denied, he filed the instant petition for administrative mandate.
This appeal follows the denial of Cobb's petition by the trial court.
DISCUSSION
Cobb contends the Rent Board's decision4 was an abuse of discretion because it was not supported by the evidence and was contrary to the provisions of the Costa-Hawkins Act.
In determining whether to grant a writ pursuant to section 1094.5, the trial court inquires whether there was a prejudicial abuse of discretion in the administrative agency's decision. ( 1094.5, subd. (b).) An abuse of discretion is established if the agency has not proceeded in the manner required by law, its decision is not supported by the findings, or the findings are not supported by the evidence. ( 1094.5, subd. (b).) Where there is a claim that the findings are not supported by the evidence and, in matters like this where the court does not exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in light of the whole record. ( 1094.5, subd. (c); Getz v. City of West Hollywood (1991) 233 Cal.App.3d 625, 627.)
The appellate court reviews the agency's decision under the same substantial evidence standard used by the trial court.
A threshold issue is whether Cobb's section 1094.5 petition was timely. The Rent Board contends it is time-barred because he failed to file it within statutory limits.
A person seeking judicial review of an agency decision must file his petition no later than 90 days following the date on which the decision becomes final. ( 1094.6, subd. (b).) When, as here, the agency's regulations provide for a written decision, that decision is final on the date it is mailed by first-class mail to the party seeking the writ. ( 1094.6, subd. (b).) The Rent Board mailed its final decision on June 9, 2000. Ninety days thereafter was September 7, 2000. Cobb filed his petition on September 8, 2000.
However, if the petitioner files a request for the administrative record within 10 days after the decision becomes final, the time for filing a section 1094.5 petition "shall be extended to not later than the 30th day following the date on which the record is either personally delivered or mailed" to the petitioner or his attorney of record. ( 1094.6, subd. (d).) The record contains a letter and a facsimile (fax) cover sheet therefor from Cobb's attorney to the Rent Board's custodian of records. The faxed letter states, in pertinent part: The faxed letter and cover sheet are both dated July 11, 2000, more than 10 days after the Rent Board mailed its final decision. However, the Rent Board's received stamp on the faxed letter is June 11, 2000.
The administrative record appears to have been sent to Cobb on or about October 6, 2000.
The Rent Board raised the timeliness issue in its objection to Cobb's petition. It supported its argument that the petition was untimely with a declaration from Delene Wolf, the Rent Board's deputy director in charge of its daily operations. She declared: (1) the Rent Board uses a mechanical time-stamp to record the date and time of received faxes, and (2) the clock on this...
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