Johnson v. City and County of San Francisco

• Citation: 40 Cal.Rptr.3d 8,137 Cal.App.4th 7
• Decision Date: 31 January 2006
• Docket Number: No. A111355.,A111355.
• Court: California Court of Appeals Court of Appeals
• Parties: Scott JOHNSON et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

40 Cal.Rptr.3d 8

137 Cal.App.4th 7

Scott JOHNSON et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

No. A111355.

Court of Appeal, First District, Division 4.

January 31, 2006.

James Brandan Kraus, Andrew Mayer Zacks, Paul F. Utrecht, Zacks Utrecht & Leadbetter, San Francisco, CA, for Plaintiff and Appellant.

Dennis J. Herrera, Wayne K. Snodgrass, and Vince Chhabria, Office of the City Attorney, San Francisco, CA, for Defendant and Respondent.

SEPULVEDA, Acting P.J. Appellants Scott Johnson and Small Property Owners of San Francisco, Inc. (SPOSF) appeal a judgment in favor of respondents City and County of San Francisco and City and County of San Francisco Board of Supervisors (collectively, the City) after the trial court denied appellants' petition for writ of mandate, concluding that a notice requirement in the City's rental ordinance was not preempted by the Ellis Act (Gov.Code,¹ § 7060 et seq.). We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The San Francisco Administrative Code requires landlords who seek eviction under the Ellis Act to pay their tenants' relocation costs; people with disabilities or who are 62 years old or older receive additional payments. (S.F. Admin. Code, § 37.9A, subd. (e)(3)(A)-(D).) Landlords also are required to notify their tenants about their right to receive payment and "the amount of payment which the landlord believes to be due." (S.F. Admin. Code, § 37.9A, subd. (e)(4), italics added.) This so-called "belief requirement" is the only portion of the San Francisco Administrative Code that is at issue in this appeal.

Appellant Johnson owns an undivided interest in real property located at 744 Union Street in San Francisco and, with another individual, has an exclusive right to occupy unit No. 6 in that building. In 2004, Johnson and his co-owners of 744 Union Street hired an attorney to help them evict the tenants occupying unit No. 6. Their attorney prepared a notice in September 2004 that stated, in part, "The Owner is aware of circumstances that might entitle you to receive payment under [San Francisco Administrative Code] Section 37.9A(e). Should you claim a right to relocation assistance, demand is hereby made that you provide counsel for Owner any and all information that you may rely on to claim said entitlement pursuant to the Government Code or [San Francisco] Rent Ordinance, including the factual and legal basis for your belief." According to Johnson, he lacked sufficient information to comply with the belief requirement.²

Appellant SPOSF is an organization of renters and small property owners that advocates home ownership in San Francisco. SPOSF includes members who have invoked the Ellis Act and who plan to do so in the future. At least one member of the organization has served termination notices with the same language found to be defective in Johnson's unlawful detainer action.

Appellants filed their complaint on May 6, 2005. They alleged that the belief requirement is facially invalid because it is not authorized by the Ellis Act. The complaint sought a writ of mandate and declaratory relief. Appellants filed a motion for an order granting their petition for writ of mandate, arguing that the belief requirement is preempted by the Ellis Act and cannot be harmonized with the Act. The City opposed the petition, arguing that writ relief was not appropriate and that the belief requirement was not preempted.³

The trial court denied appellants' petition for a writ of mandate, finding that the Ellis Act did not preempt the belief requirement. The trial court also found that writ relief was not appropriate because (1) disputes were unlikely to arise in the future because it is easy to comply with the belief requirement, and (2) owners may adjudicate any disputes that do arise in the course of unlawful detainer proceedings. The trial court entered judgment,⁴ and appellants timely appealed.

DISCUSSION

A. Standard of Review.

In denying the petition for writ of mandate, the trial court ruled as a matter of law that the City ordinance is not preempted by the Ellis Act. We review this legal conclusion de novo. (Tom v. City and County of San Francisco (2004) 120 Cal.App.4th 674, 678-679, 16 Cal.Rptr.3d 13; see also Los Angeles Lincoln Place Investors, Ltd. v. City of Los Angeles (1997) 54 Cal.App.4th 53, 59, 62 Cal.Rptr.2d 600 [de novo review of determination whether to issue writ of mandate where case involves interpretation of statute].)

B. The Ellis Act.

The Legislature enacted the Ellis Act following the California Supreme Court's opinion in Nash v. City of Santa Monica (1984) 37 Cal.3d 97, 207 Cal.Rptr. 285, 688 P.2d 894, upholding a city ordinance that required owners of residential rental property to obtain a permit before they could remove property from the rental market. (§ 7060.7.) "[T]he Act was intended to overrule the Nash decision so as to permit landlords the unfettered right to remove all residential rental units from the market, consistent, of course, with guidelines as set forth in the Act and adopted by local governments in accordance thereto." (City of Santa Monica v. Yarmark (1988) 203 Cal.App.3d 153, 165, 249 Cal.Rptr. 732 (Yarmark); § 7060.) The Act does not diminish or enhance a local government's ability "to mitigate any adverse impact on persons displaced by reason of the withdrawal from rent or lease of any accommodations." (§ 7060.1, subd. (c).) It likewise does not interfere with a local government's ability to regulate land use or override "procedural protections designed to prevent abuse of the right to evict tenants." (§ 7060.7, subd. (c).)

A tenant facing an unlawful detainer action under the Ellis Act may assert as a defense that his or her landlord failed to comply with the provisions of the Act or any statutes, ordinances, or regulations adopted pursuant to the Act. (§ 7060.6.)

C. The Ellis Act Preempts the Belief Requirement.

"A city or county may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations that do not conflict with general law. (Cal. Const., art. XI, § 7.) If local legislation conflicts with state law, it is preempted by the state law and is void. [Citation.] A conflict exists when the local legislation contradicts state law. Local legislation contradicts state law when it is inimical to it. [Citations.]" (Reidy v. City and County of San Francisco (2004) 123 Cal.App.4th 580, 587, 19 Cal.Rptr.3d 894.)

A conflict between local ordinance and state law exists if the local law duplicates, contradicts, or regulates an area fully occupied by general law, either expressly or by legislative implication. (Yarmark, supra, 203 Cal.App.3d at p. 161, 249 Cal.Rptr. 732.) "The first step in a preemption analysis is to determine whether the local regulation explicitly conflicts with any provision of state law. [Citation.] [¶] If the local legislation does not expressly contradict or duplicate state law, its validity must be evaluated under implied preemption principles. `In determining whether the Legislature has preempted by implication to the exclusion of local regulation we must look to the whole purpose and scope of the legislative scheme. There are three tests: "(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality." [Citation.]' [Citation.]" (Id. at p. 162, 249 Cal.Rptr. 732; see also Channing Properties v. City of Berkeley (1992) 11 Cal.App.4th 88, 93, 14 Cal.Rptr.2d 32 (Channing Properties).) Placing requirements on landlords that are inconsistent with their right to go out of business under the Ellis Act "imposes a prohibitive price on the exercise of the right under the Act." (Javidzad v. City of Santa Monica (1988) 204 Cal.App.3d 524, 531, 251 Cal.Rptr. 350.)

In Yarmark, supra, 203 Cal.App.3d 153, 249 Cal.Rptr. 732, the court considered amendments to the Santa Monica City Charter that prohibited landlords from evicting tenants where they could make a fair return unless the rental units they owned were uninhabitable or unless the landlords promised to develop new multifamily dwelling units subject to rent control. (Yarmark, supra, at p. 164, 249 Cal.Rptr. 732.) The court held that the charter amendments were preempted because they directly contradicted an area fully occupied by the Ellis Act, which permits landlords to leave the rental market even if they could make a fair return and the property is habitable. (Id. at pp. 164-165, 249 Cal.Rptr. 732.) "The Ellis Act imposes limits on a city's right to exercise its police power to create substantive defenses for use in summary eviction proceedings." (Id. at p. 164, 249 Cal.Rptr. 732.) While the Ellis Act does not prohibit local governments from providing procedural protections designed to prevent abuse of the right to evict tenants (§ 7060.7, subd. (c)), it "completely occupies the field of substantive eviction controls over landlords who wish to withdraw" all units from the residential rental market. (Yarmark, supra, at p. 167, 249 Cal.Rptr. 732.)

Appellants argue that the Ellis Act preempts the belief requirement because the local ordinance is a substantive limit on the right to withdraw units from the rental market and because the requirement is not authorized by the Act. While the question is a close one, we conclude that the Ellis Act preempts the belief requirement because the requirement creates an impermissible substantive...