San Francisco Apartment Assn. v. City and County of San Francisco CA1/3 ( 2023 )

Filed 5/2/23 San Francisco Apartment Assn. v. City and County of San Francisco CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SAN FRANCISCO APARTMENT
ASSOCIATION et al.,
Plaintiffs and Appellants, A161866
v. (City & County of San Francisco
CITY AND COUNTY OF SAN Super. Ct. No. CPF20517087)
FRANCISCO,
Defendant and Appellant.
The City and County of San Francisco (the City) adopted Ordinance
No. 36-20 (Ordinance 36-20) in 2020, amending the requirements for “buyout”
agreements between landlords and tenants and classifying certain types of
unlawful detainer settlements as buyout agreements. Four associations (the
associations, or plaintiffs), three of them representing residential rental-
property owners and one representing realtors, brought this facial challenge
to the ordinance, alleging it conflicted with state law and seeking a writ of
mandate and declaratory relief. The trial court granted the writ petition, and
subsequently entered judgment in plaintiffs’ favor.
The City and the associations have both appealed. The City contends
the associations did not meet their burden to show they have standing to
bring this action. The associations argue the trial court erred by entering
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judgment granting narrower relief than indicated in its initial order granting
the writ petition. We find no error, and accordingly affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Tenant Buyout Ordinance and Amendments
In 2014, the City adopted section 37.9E of the Administrative Code
(Ordinance 37.9E, or the buyout ordinance), entitled “Tenant Buyout
Agreements.” (Section 37.9E; Ord. No. 225-14, Oct. 21, 2014) In enacting the
buyout ordinance, the City found that some landlords who wished to charge
market-rate rent for rent-controlled apartments or to sell their property
offered cash buyouts to tenants in exchange for the tenants vacating the
units. These buyouts allowed landlords to circumvent restrictions that
applied to no-fault evictions, such as additional time for a tenant to move out
or funds to cover relocation costs. And, according to the City, landlords
sometimes used high-pressure tactics and intimidation to persuade tenants
to sign the agreements. (Ord. 37.9E, subd. (a).)
To remedy these problems, the City enacted Ordinance 37.9E.
Originally, the ordinance required landlords to provide tenants with a
disclosure of their rights before beginning buyout negotiations (id., subd. (d));
required buyout agreements to be in writing and include statements about
the tenants’ rights (id., subd. (f)); allowed tenants to rescind buyout
agreements for up to 45 days (id., subd. (g)); required landlords to report
buyout negotiations and agreements to the City’s Rent Board (id., subds. (e),
(h)); provided for the creation of a publicly available database of buyout
agreements (id., subd. (i)); and authorized tenants and certain non-profits to
bring actions for violations of the ordinance (id., subd. (k)). As originally
enacted, Ordinance 37.9E defined a “ ‘Buyout Agreement’ ” as “an agreement
wherein the landlord pays the tenant money or other consideration to vacate
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the rental unit. An agreement to settle a pending unlawful detainer action
shall not be a ‘Buyout Agreement.’ ” (Id., subd. (c), italics added.)
The City amended the buyout ordinance on February 3, 2020, when it
passed Ordinance 36-20, the measure at issue in this appeal. The City found
that the buyout ordinance’s exclusion of unlawful detainer settlements from
the protections of Ordinance 37.9E had “developed into a significant loophole.
Elevating form over substance, some landlords will start buyout negotiations,
but then file unlawful detainer actions so that they can resolve the
negotiations as ‘settlements’ rather than ‘buyouts,’ and thereby avoid
complying with the Buyout Ordinance. This undermines the goals of the
Buyout Ordinance.” (Ordinance 36-20, § 1.) The City also identified concerns
“that some landlords continue to employ the high-pressure tactic of giving
tenants very little time to conduct buyout negotiations,” and some disregard
their obligation under the buyout ordinance “to give tenants a set of written
disclosures before buyout negotiations start,” rather than when the
negotiations are about to conclude. (Ibid.) “In light of these various
problems,” the City revised the buyout ordinance “to modify certain pre-
notification disclosure rules, so that the process is fairer and so that the City
can better monitor compliance.” (Ibid.)
Ordinance 36-20 amends the definition of “ ‘Buyout Agreement’ ” to
include an agreement to settle a pending unlawful detainer action if the
action was filed within 120 days after commencement of buyout negotiations.
(Ord. 36-20, subd. (c).) The amendments also require the party filing a
buyout agreement to inform the Rent Board whether the agreement concerns
an unlawful detainer action, and require the Rent Board to redact
confidential information regarding the unlawful detainer action. (Id.,
subd. (i).) Ordinance 36-20 additionally contains a number of changes not
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directly related to unlawful detainer actions. It specifies additional
information landlords must disclose to tenants before buyout negotiations
begin (id., subd. (d)(11)); requires landlords to declare under penalty of
perjury that they provided the required disclosures before negotiations began
(id., subd. (e)); requires landlords to notify the Rent Board of the assessors’
parcel number and the address of the relevant building and of the date the
tenant received the required notice (ibid.); requires at least 30 days between
commencement of negotiations and execution of a buyout agreement (id.,
subd. (f)(1)); allows tenants to void language in a buyout agreement waiving
rights or releasing claims if the landlord does not file the agreement with the
Rent Board within 59 days (id., subds. (f)(2), (h)); and makes other minor
changes. It includes a severability clause. (Ord. 36-20, § 5.)
II. Petition for Writ of Mandate
The associations—San Francisco Apartment Association (SFAA), San
Francisco Association of Realtors (SFAR), Coalition for Better Housing
(CBH), and Small Property Owners of San Francisco Institute (SPOSFI)—
brought this action on May 12, 2020. On August 5, they filed a verified
amended petition for writ of mandate and complaint for declaratory relief
(the petition) and moved for a hearing on the petition.
The petition alleges that, as amended by Ordinance 36-20, the buyout
ordinance is facially invalid. Specifically, the petition alleges the ordinance
violates the state litigation privilege by placing procedural and substantive
burdens on offers to settle unlawful detainer actions, thus interfering with
landlords’ rights of access to the judicial process; the ordinance’s procedures
conflict with, and are thus preempted by, California’s summary unlawful
detainer statutes (Code Civ. Proc, § 1159 et seq.);1 and the ordinance
1 All undesignated references are to the Code of Civil Procedure.
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undermines the courts’ authority to promote and enforce settlement
agreements by requiring landlords to wait 30 days before executing a buyout
agreement that settles an unlawful detainer case, then delaying finality of
the agreement for 45 days until the tenant’s right of rescission expires, and
preventing courts from enforcing the agreement if the landlord misses the 59-
day deadline to file it with the Rent Board. Based on these alleged violations,
the petition sought a declaration that Ordinance 36-20 (particularly as to
sections (c), (f)(1), and (h)) is facially invalid, and a writ of mandate
prohibiting enforcement of Ordinance 36-20. The petition did not challenge
the originally enacted provisions of the buyout ordinance. The parties
stipulated to extend the City’s time to answer until after the court issued its
ruling, and the trial court so ordered.2
A hearing took place on September 15, 2020, and on October 8, 2020,
the trial court issued an “Order Granting Petition for Writ of Mandate.” The
court first ruled the associations had sufficiently alleged standing to
challenge Ordinance 36-20. We discuss the allegations regarding standing in
greater detail below.
On the merits, the trial court found Ordinance 36-20 invalid in three
respects. First, the ordinance interferes with section 664.6, which authorizes
courts to enter judgment pursuant to the terms of a settlement agreement, by
imposing restrictions on settlement for all unlawful detainer actions brought
within 120 days of the commencement of negotiations. Second, the ordinance
is preempted by state law, which occupies the field of summary procedures to
recover possession of real property in unlawful detainer actions (citing
Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 151), because the
2 We grant the City’s June 13, 2022 request for judicial notice of the
stipulation and order.
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ordinance delays recovery of possession and allows agreements to be
rescinded if the landlord fails to record them as required with the Rent
Board. Third, the ordinance violates the litigation privilege (Civ. Code, § 47,
subd. (b)) by imposing liability on all landlords who threaten an unlawful
detainer action but do not also comply with the ordinance. (Ord. 37.9E,
subd. (k)(1) & (2).) The court therefore found “Ordinance 36-20 is invalid and
unenforceable” and concluded, “[a]ccordingly, [¶] (1) A writ of mandate shall
issue, commanding Respondent City to set aside the actions approving and
enacting Ordinance 36-20; and [¶] (2) Respondent City is enjoined from
enforcing Ordinance 36-20, per the findings set forth above.” Notice of entry
of order was served on October 13, 2020.
Over the next several weeks, the parties engaged in negotiations
regarding a possible settlement under which they would agree to a judgment
and writ that invalidated only the offending portions of Ordinance 36-20, but
they were unable agree on the scope of such a judgment.
The City filed an ex parte application for entry of writ and judgment on
December 9, 2020, contending that the judgment should be broad enough to
remedy only the legal violations the trial court identified, not to enjoin
provisions that violate no law. The City proposed that the City be prohibited
from enforcing only subsections (c) and (i) of Ordinance 36-20. These portions
of the amended buyout ordinance expand the definition of “ ‘Buyout
Agreement’ ” to include certain agreements to settle an unlawful detainer
action (subsection (c)) and require a party filing a buyout agreement with the
Rent Board to indicate whether the agreement concerns an unlawful detainer
action, so the Rent Board can make required redactions in such cases
(subsection (i)).
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On the same date, the associations opposed the City’s application and
filed their own ex parte application for entry of judgment and entrance of a
writ. They argued that the City’s application was a procedurally improper
request for reconsideration; that, pursuant to the October 8, 2020 order, they
were entitled to judgment prohibiting enforcement of Ordinance 36-20 in its
entirety; and that the City had forfeited its argument that the offending
portions of the measure were severable by failing to raise the argument
earlier. Plaintiffs included in their submissions a proposed judgment
enjoining the City from “enforc[ing] or apply[ing] Ordinance 36-20” and
directing issuance of a writ of mandate commanding the City not to do so.
The trial court entered judgment as proposed by the City on December
11, 2020, directing that “[a] writ of mandate shall issue commanding
respondent City not to enforce or apply subsections (c) and (i)” and enjoining
the City “from enforcing or applying subsections (c) and (i)” of Ordinance 36-
20. The City appealed, and the associations cross-appealed.
DISCUSSION
I. Standing
The City’s only assignment of error in its appeal is that the trial court
improperly found the associations had standing to challenge Ordinance 36-
20. A party’s standing to bring an action is a threshold issue to be resolved
before proceeding to the merits of a case. (Apartment Assn. of Los Angeles
County, Inc. v. City of Los Angeles (2006) 136 Cal.App.4th 119, 128
(Apartment Assn.).) Standing is normally a question of law to which we apply
a de novo standard or review, although we review any underlying factual
findings for substantial evidence. (San Luis Rey Racing, Inc. v. California
Horse Racing Bd. (2017) 15 Cal.App.5th 67, 73.)
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A. Procedural Background
In their verified amended petition, the associations allege that SFAA is
a non-profit trade association of more than 2,800 members, who own more
than 65,000 residential real properties in the City. Its mission is to educate,
advocate for, and support the rental housing community and preserve the
property rights of residential rental property providers, and it receives many
calls from property owners about their legal rights and duties. According to
the petition, “SFAA and its members are adversely and directly affected by
the Buyout Ordinance as Amended. SFAA includes members who are
currently terminating, and will in the future terminate, San Francisco
tenancies under Rent Ordinance § 37.9(a)[3] and most of these tenancies are
subject to the Ordinance. The ability of residential property owners to
exercise their state law termination rights, including those under the
unlawful detainer statutes and litigation privilege, free from the ordinance is
germane to SFAA’s organizational purpose and this challenge does not
require the participation of individual members.”
As to SFAR, the petition alleges it provides services to realtors doing
business in San Francisco; that homes are often tenant-occupied and
financing terms may require the borrower to occupy the dwelling; that the
ordinance harms SFAR and its members by delaying the process of home
purchasing; and that the ordinance exposes realtors to potential liability if a
buyout agreement is rescinded after the sale is complete.
The petition alleges CBH is a non-profit trade organization
representing owners of more than 20,000 residential rental units in San
Francisco, that its purposes include advocating for, supporting, and
3 San Francisco Rent Ordinance, Administrative Code section 37.9,
subdivision (a), governs the grounds for eviction.
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protecting the property and legal rights of CBH members and other rental
property owners; that CBH members own buildings subject to the provisions
of the ordinance; and that CBH and its members are directly and adversely
affected by the ordinance because it affects their ability to manage their real
property and have access to the courts.
SPOSFI is an organization of small property owners that advocates for
the rights of residential rental property owners in San Francisco and seeks to
protect their rights against unfair and burdensome regulations. The petition
alleges SPOSFI has standing because its members’ ability to manage and
control their real property and exercise their statutory rights is germane to
the organization’s purpose, and individual members are subject to the
ordinance and could have challenged it in their own right.
The trial court concluded plaintiffs sufficiently alleged standing.
According to the trial court, the associations are “uniquely and perhaps
exclusively affected” by the amended ordinance; the “ ‘public at large’ ” has no
such interest as the ordinance applies only to landlords and tenants. The
court concluded plaintiffs have a beneficial interest in the action, as their
“individual members would have standing to sue in their own right over
restrictions on the manner in which they can initiate, prosecute and
ultimately settle unlawful detainer actions”; the interests plaintiffs seek to
protect are germane to the interests of the associations and their members;
and there was no requirement for the personal participation of the members.
B. Analysis
An association has standing to bring an action on behalf of its members
when three criteria are met: (1) its members would have standing to bring
suit in their own right; (2) the association seeks to protect interests germane
to the purpose of the organization; and (3) neither the claim nor the
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requested relief requires participation of the association’s individual
members. (Apartment Assn., supra, 136 Cal.App.4th at p. 129; San Francisco
Apartment Assn. v. City and County of San Francisco (2016) 3 Cal.App.5th
463, 472 (SFAA).)
The City challenges the existence of only the first of these three
requirements. To meet this requirement, there is no need to show that each
individual member of an association has suffered, or is at imminent risk of
suffering actual injury; rather, “it is enough if the plaintiff organization
proves by a preponderance of the evidence that its members have ‘ “some
special interest to be served or some particular right to be preserved or
protected over and above the interest held in common with the public at
large.” ’ ” (SFAA, supra, 3 Cal.App.5th at p. 474.) That is, association
members must “ ‘be “beneficially interested,” ’ ” and that “interest must be
direct and substantial.” (League of California Cities v. Superior Court (2015)
241 Cal.App.4th 976, 985.) “Writ relief is not available if the petitioner gains
no direct benefit from the writ’s issuance, or suffers no direct detriment from
its denial.” (Ibid.)
We conclude this legal standard is met here, at least for the
associations representing groups of landlords. Without distinguishing among
plaintiffs, the trial court found their “members would have standing to sue in
their own right over restrictions on the manner in which they can initiate,
prosecute and ultimately settle unlawful detainer actions.” We think
substantial evidence supports this finding for SFAA, CBH, and SPOSFI,
whose members own residential rental property in the City.4 SFAA alleged
4 We do not see how this finding could apply to SFAR and its realtor
members, who presumably do not initiate, prosecute, or settle unlawful
detainer actions. But since three other plaintiffs who do have standing bring
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in the verified petition that it represented owners of more than 65,000 rental
properties, and CBH represents owners of more than 20,000 units. Some of
these associations’ members are currently terminating, or will soon
terminate, tenancies, most of which are subject to Ordinance 36-20. The City
has presented nothing to undermine these allegations, and we will assume
they are true. (See Apartment Assn., supra, 136 Cal.App.4th at pp. 127–129
[finding standing based on allegations of complaint].) Rather, the City
suggests that to establish standing, plaintiffs must show they have members
with concrete plans to initiate buyout negotiations, then file an unlawful
detainer action within a certain amount of time, then enter into a buyout
agreement without complying with the buyout ordinance. We are
unpersuaded. The City itself found that before the passage of Ordinance 36-
20, some landlords began buyout negotiations then filed and settled an
unlawful detainer action to avoid having to comply with the buyout
ordinance. Having passed ordinance 36-20 specifically to put a stop to this
behavior, the City can hardly protest when associations representing
landlords aver that their members chafe under the constraints of the
ordinance. By its terms, Ordinance 36-20 limits and imposes conditions on
remedies available to landlords seeking to terminate tenancies and settle
unlawful detainer actions. We conclude the associations have adequately
alleged that their members have an interest in this matter beyond that of the
public at large, and that they would directly benefit from issuance of the writ.
(See SFAA, supra, 3 Cal.App.5th at p. 474.)
We are confirmed in that view by a pair of cases brought by the same or
similar plaintiffs to challenge other local ordinances. In SFAA, a case
identical claims to those brought by SFAR, the question of SFAR’s standing
need not detain us.
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involving three of the same plaintiffs as those now before us, a different panel
of this division upheld the trial court’s finding that the plaintiffs had
standing to challenge, on grounds of preemption by the Ellis Act (Gov. Code,
§ 7060 et seq.), a different City ordinance. (SFAA, supra, 3 Cal.App.5th at
pp. 472–474.) The challenged enactment imposed a waiting period on a
landlord who withdrew a rental unit from the market, before the landlord
could merge the withdrawn unit into one or more other units. (Id. at
pp. 468–469.) The trial court found plaintiffs had proved their members’
beneficial interest, reasoning that the ordinance infringed on the right of
SFAA and CBH members to exit the rental market under the Ellis Act and
affected the ability of real estate agents represented by SFAR to market, sell,
and manage rental properties in the City. (Id. at p. 473.) These findings, the
appellate court concluded, were adequately supported by sworn declarations
that SFAA had received numerous calls from members protected under the
Ellis Act asking how the new law would apply to residential properties in San
Francisco; that CBH members were protected by the Ellis Act and would be
subject to the merger ban; and that SFAR members would be harmed when
the ordinance discouraged prospective buyers who wished to merge units into
a single-family residence from purchasing a building where Ellis Act
evictions had occurred. (Id. at pp. 473–474.) The plaintiffs thus showed that
they had an interest in the action beyond that of the public at large. (Id. at
p. 474.)
Apartment Assn. is also instructive. There, an association representing
owners and managers of residential rental property in the City of Los
Angeles challenged a rent stabilization ordinance that, among other things,
made landlords liable for civil damages if they received excess rent.
(Apartment Assn., supra, 136 Cal.App.4th at pp. 125–126, 128.) Based solely
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on the allegations of the complaint, the Court of Appeal concluded the
association plaintiffs satisfied all three criteria for standing: their individual
members could have challenged the validity of the ordinance in their own
right, the right to fair rent was germane to their organizational purposes,
and their facial challenge did not require the participation of individual
members. (Id. at pp. 127, 129.)
Relying in large part on federal cases, the City argues the requisite
injury in fact is not established here. The “ ‘injury in fact’ ” necessary for
standing in federal court is “an invasion of a legally protected interest which
is (a) concrete and particularized, [citations]; and (b) ‘actual or imminent, not
“conjectural” or “hypothetical.” ’ ” (Lujan v. Defenders of Wildlife (1992) 504
U.S. 555, 560, fn. omitted.) In the past, our high court has described
California’s beneficial interest test as “equivalent to the federal ‘injury in fact’
test” (Associated Builders & Contractors, Inc. v. San Francisco Airports Com.
(1999) 21 Cal.4th 352, 361–362); more recently it has observed “[t]here are
sound reasons to be cautious in borrowing federal standing concepts, born of
perceived constitutional necessity, and extending them to state court actions
where no similar concerns apply.” (Kwikset Corp. v. Superior Court (2011) 51
Cal.4th 310, 322, fn. 5, citing Jasmine Networks, Inc. v. Superior Court (2009)
180 Cal.App.4th 980, 990–993; see also Save the Plastic Bag Coalition v. City
of Manhattan Beach (2011) 52 Cal.4th 155, 166, fn.3 & 170 [analyzing
beneficial interest without reference to injury in fact].) But even if we
assume, without deciding, that federal cases applying the injury in fact
standard are a potential source of useful guidance, we remain unpersuaded
that the trial court erred in finding standing here.
In Carrico v. City and County of San Francisco (9th Cir. 2011) 656 F.3d
1002 (Carrico), upon which the City relies, SFOSFI and two individual
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landlords challenged a rent stabilization ordinance prohibiting residential
landlords and their agents from attempting, in bad faith, to coerce tenants to
vacate with offers of payment accompanied by threats or intimidation. (Id. at
p. 1004.) The Ninth Circuit explained that, when considering whether “ ‘pre-
enforcement plaintiffs’ ” have established standing, it looked to whether the
plaintiffs showed a reasonable likelihood the government would enforce the
challenged law against them; whether they established that they intended to
violate the challenged law, and whether the law is applicable to the plaintiffs,
either by its terms or as interpreted by the government. (Id. at p. 1006.)
These requirements, the court concluded, were not met by the plaintiffs’ bald
allegations that the ordinance “ ‘was intended to, and does, impact their
operations as landlords’ ” and that they were “ ‘subject to the legal and
constitutional infirmities” of the ordinance. (Ibid.) “[C]ontext matters,” the
court explained (id. at p. 1007), and none was provided here. Since “SPOSFI
did not make any allegations regarding speech or conduct that its members
would engage in that might violate” the ordinance, the court could not
analyze “whether what they would like to do even arguably falls within the
scope of” the ordinance or “is protected by the First Amendment.” (Ibid.)
The court in Carrico distinguished Pennell v. City of San Jose (1988)
485 U.S. 1 (Pennell), which found standing where an apartment owners’
association and an individual landlord challenged a rent control ordinance
that allowed a hearing officer to consider the hardship to a tenant in
determining whether to approve a rent increase. (Id. at pp. 4, 6–8; Carrico,
supra, 656 F.3d at pp. 1006–1007.) Although there was no allegation that the
plaintiffs had hardship tenants who might trigger the ordinance’s hearing
process or that they had been or would be aggrieved by a determination that
a proposed rent increase was unreasonable, plaintiffs alleged their properties
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were subject to the terms of the ordinance, and they stated at oral argument
that the association represented most of the residential unit owners in the
city and its members had many hardship tenants. (Pennell, at p. 7.) As a
result, it was not “ ‘unadorned speculation’ ” to conclude the ordinance would
be enforced against the organization’s members. (Id. at p. 8.)
The City also relies on Thomas v. Anchorage Equal Rights Comm’n (9th
Cir. 2000) 220 F.3d 1134, 1137 (Thomas), in which the Ninth Circuit found
injury too speculative to support standing where several landlords
challenged, on First Amendment grounds, an Alaska law prohibiting housing
discrimination on the basis of marital status. The landlords claimed they had
refused to rent to unmarried couples in the past and intended to do so in the
future but could provide no details. (Id. at p. 1139.) And the record disclosed
no credible threat that the law would be enforced against the landlords,
especially since it had never before been criminally enforced and only twice in
the preceding 25 years been enforced civilly. (Id. at p. 1140.)
We think this case is more like Pennell than Carrico or Thomas.
Ordinance 36-20 was recently passed for the express purpose of preventing
residential landlords from engaging in specifically-described behavior that,
according the City, had turned into a “significant loophole” among landlords
seeking to end tenancies. Plaintiffs’ members represent a large swath of the
landlords in the jurisdiction, including landlords who are currently engaged
in ending tenancies, so, as in Pennell, it was hardly speculative to conclude
the ordinance would directly affect their operations. (See Pennell, supra, 485
U.S. at p. 8.) Here there is no issue, as there was in Thomas, of a statute
long on the books but rarely enforced, such that it “not reasonable” to
conclude in Thomas that the statute would be enforced against the single
landlord who sought to pursue a constitutional challenge. (Thomas, supra,
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220 F.3 at p. 1141.) And, unlike in Carrico, there is no need here for
plaintiffs to have been more concrete about what conduct their members
sought to engage in but considered the ordinance to prohibit. (Cf. Carrico,
supra, 656 F.3d at p. 1007.) Ordinance 36-20 is much more specific in its
directives.
Finally, we note the absence of any discussion of standing in a federal
case the plaintiffs cited in their petition: San Francisco Apartment Assn. et
al. v. City & County of San Francisco (9th Cir. 2018) 881 F.3d 1169. There,
the Ninth Circuit rejected a constitutional challenge to the original buyout
ordinance, Ordinance 37.9E, in a case brought by three of the same plaintiffs
that brought this case—SFAA, SPOSFI, and SFAR. Since standing is a
jurisdictional issue that the court can raise sua sponte and for the first time
on appeal (Carrico, supra, 656 F.3d at p. 1005), this silence suggests the
Ninth Circuit saw no standing problem the last time these plaintiffs
challenged the buyout ordinance. Taken together the federal cases only
confirm, if they are relevant at all, the conclusion we reach under California
law that the trial court correctly determined the associations of landlords had
standing to bring this challenge.
II. Effect of October 8, 2020 Order
In its appeal, SFAA contends the trial court’s initial order of October 8,
2020 (the October 8 order) granting the petition for writ of mandate was a
final judgment and the court exceeded its jurisdiction and its discretionary
powers by deviating from its terms when it entered judgment on December
11, 2020. The City makes no challenge to the judgment of December 11, 2020
(the December 11 judgment), which invalidated only the portions of
Ordinance 36-20 that expressly govern unlawful detainer actions. Instead,
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the City takes the position that, if we conclude the associations have
standing, we should affirm that judgment.
“ ‘A judgment is the final determination of the rights of the parties in
an action or proceeding.’ ” (Public Defenders’ Organization v. County of
Riverside (2003) 106 Cal.App.4th 1403, 1409.) Accordingly, an order granting
or denying a petition for an extraordinary writ may constitute a final
judgment for purposes of an appeal, even without a separate formal
judgment. (Ibid.; Natomas Unified School Dist. v. Sacramento County Bd. of
Education (2022) 86 Cal.App.5th 1013, 1027.) The test, which “ ‘must be
adapted to the particular circumstances of the individual case,’ ” is whether
any issue is left for the court’s future consideration (aside from compliance or
noncompliance with the first decree) or whether “ ‘anything further in the
nature of judicial action on the part of the court is essential to a final
determination of the rights of the parties.’ ” (Griset v. Fair Political Practices
Com. (2001) 25 Cal.4th 688, 698; Save Mount Diablo v. Contra Costa County
(2015) 240 Cal.App.4th 1368, 1376, fn. 5; Public Defenders’ Organization, at
p. 1410.) In making this determination, we consider “ ‘not the form of the
decree but the substance and effect of the adjudication.’ ” (Griset, at p. 698.)
Plaintiffs argue that under these rules, the October 8 order was a final
judgment because it decided all issues between the parties. That is
important, plaintiffs contend, because in general, “ ‘once a judgment has been
entered, the trial court loses its unrestricted power to change that judgment.
The court does retain power to correct clerical errors in a judgment which has
been entered. However, it may not amend such a judgment to substantially
modify it or materially alter the rights of the parties under its authority to
correct clerical error. . . . Once judgment has been entered, the trial court
does retain jurisdiction for a limited period of time to entertain and grant a
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motion for a new trial [citation] or . . . a motion to vacate a judgment and
enter a different judgment for either of two reasons: an incorrect or erroneous
legal basis for the decision, not consistent with or supported by the facts, or a
judgment not consistent with or not supported by the special verdict.”
(Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237;
see Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 43 [“A trial
court lacks jurisdiction to amend a judgment ex parte in a manner not
prescribed by statute”].) And, plaintiffs argue, the October 8 order
invalidated Ordinance 36-20 in its entirety—even portions that have nothing
to do with unlawful detainer actions—and the City did not pursue a motion
for a new trial or any other procedurally proper avenue to modification of the
order. As a result, according to plaintiffs, the trial court had no authority to
deviate from the terms of the October 8 order in entering the December 11
judgment.
We are unpersuaded. The October 8 order is not as clear-cut as
plaintiffs suggest. After finding Ordinance 36-20 invalid and unenforceable,
the trial court issued two orders: first, that a writ of mandate should issue
requiring the “City to set aside the actions approving and enacting Ordinance
36-20” and second, that the “City is enjoined from enforcing Ordinance 36-20,
per the findings set forth above.” The first of these orders was constitutional
error—a violation of separation of powers—because it directed the City to
undertake a specific legislative act. (See Boatworks, LLC v. City of Alameda
(2019) 35 Cal.App.5th 290, 306 [separation of powers prevents courts from
commanding legislative act]; City of Palo Alto v. Public Employment
Relations Bd. (2016) 5 Cal.App.5th 1271, 1316 [“ordering rescission of a
legislative act is in itself a legislative act,” and “separation of powers . . .
prohibits this remedy”].) This portion is without effect. And the second
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portion contains an important qualification, that the injunction against
enforcing the ordinance is “per the findings set forth above.” Those findings
pertain exclusively to the measure’s effects on unlawful detainer actions. The
trial court found that application of the buyout ordinance to unlawful
detainer actions commenced within 120 days of a buyout offer interferes with
section 664.4 and the resolution of pending cases; it is inconsistent with
California’s summary unlawful detainer procedures; and it violates the
litigation privilege because a landlord’s actions in threatening to bring an
unlawful detainer action and in serving an eviction notice are protected by
the privilege yet trigger the constraints of Ordinance 36-20. The court
neither discussed nor found any violation unrelated to unlawful detainer
actions.
That is not surprising, because the gravamen of the petition is that
Ordinance 36-20 is facially invalid because it “enters a realm of state law that
occupies the field of civil litigation in unlawful detainers, improperly
imposing new requirements—not found in state law—at every stage of
unlawful detainer litigation.” Thus, according to the petition, the ordinance
violates the litigation privilege at the outset of litigation by imposing burdens
on unlawful detainer lawsuits contemplated in good faith; it conflicts with
California’s summary unlawful detainer process during litigation; and it
undermines the court’s ability to promote and enforce settlement agreements
by preventing unlawful detainer actions from being fully and finally settled.
As to the cause of action for declaratory relief, plaintiffs allege Ordinance 36-
20 “violates all stages of unlawful detainer procedure,” and as to the second
cause of action for a writ of mandate, they allege the “patterned approach to
the beginning, middle and end of unlawful detainer litigation” conflicts with
state law. In their briefs and oral argument in the trial court, plaintiffs
19
similarly limited their arguments to the ordinance’s unlawful “restrictions on
all facets of the unlawful detainer process,” arguing that these restrictions
are preempted because they conflict with state law. (Cal. Const., art. XI, § 7.)
Plaintiffs seek to persuade us now that their allegations and written
arguments below (and by extension the October 8 order) were not limited to
unlawful detainer actions but apply to other actions that a landlord and
tenant might also settle with a buyout agreement. However, they point only
to general statements about the effects of Ordinance 36-20 and ignore the
fact that those statements were made in the context of assertions that the
new requirements impermissibly burden unlawful detainer actions. We have
searched the record in vain for any discussion of how any other litigation
would be affected. And, we bear in mind, this is a facial challenge to
Ordinance 36-20. To mount a successful facial challenge, “ ‘ “the challenger
must establish that no set of circumstances exists under which the [law]
would be valid.” ’ [Citation.] The moving party must show that the
challenged statutes or regulations ‘ “ ‘inevitably pose a present total and fatal
conflict’ ” ’ with applicable prohibitions.” (T.H. v. San Diego Unified School
Dist. (2004) 122 Cal.App.4th 1267, 1281; accord, Association of California Ins.
Cos. v. Poizner (2009) 180 Cal.App.4th 1029, 1054.) In finding Ordinance 36-
20 facially invalid, the trial court carefully explained that its restrictions
applied to all unlawful detainer actions brought within 120 days of beginning
buyout negotiations. Plaintiffs made no effort to establish Ordinance 36-20
similarly poses inevitable restrictions on any other type of litigation, and the
court found no other facial violation.
It is well established that “equitable relief against other branches of
government must be restrained by ‘principles of comity and separation of
powers,’ and that ‘[a] court should always strive for the least disruptive
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remedy adequate to its legitimate task.’ ” (O’Connell v. Superior Court (2006)
141 Cal.App.4th 1452, 1476 (O’Connell), quoting Butt v. State of California
(1992) 4 Cal.4th 668, 695–696 (Butt).)5 Also relevant here, we apply the same
rules in determining the meaning of a trial court order or judgment as in
ascertaining the meaning of any other writing. (Mendly v. County of Los
Angeles (1994) 23 Cal.App.4th 1193, 1205; Verner v. Verner (1978) 77
Cal.App.3d 718, 724.) We may look to findings of fact and conclusions of law
to clarify any ambiguity. (Verner, at p. 724.) In interpreting a written
instrument, we must avoid an interpretation that renders part of it
surplusage, and if it is susceptible to two interpretations, we should apply an
interpretation that makes the instrument lawful and avoid one that would
make it unjust or inequitable. (Richeson v. Helal (2007) 158 Cal.App.4th 268,
278; National City Police Officers’ Assn. v. City of National City (2001) 87
Cal.App.4th 1274, 1279.)
Applying these principles, we construe the language of the October 8
order, “per the findings set forth above” to mean the trial court intended to
enjoin Ordinance 36-20 only to the extent it applied to unlawful detainer
actions. Plaintiffs did not plead or show any other facially invalid aspects of
the ordinance, and the trial court found none. Our conclusion that the
October 8 order was intended to prohibit enforcement only of the provisions
related to unlawful detainer actions is bolstered by the fact that, when
5 Noting that O’Connell considered an as-applied challenge and Butt a
preliminary injunction, plaintiffs suggest this rule does not apply to facial
challenges or to final relief. They offer no principled basis to conclude it is
proper to fashion unnecessarily broad relief in a facial challenge or in issuing
a writ of mandate enjoining enforcement of an ordinance, and we can think of
none.
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presented with proposed judgments prepared by the parties, the trial court
signed the one that was so limited.
Consistent with this interpretation, the December 11 judgment
prohibits enforcement of the only two portions of Ordinance 36-20 specifically
applicable to unlawful detainer actions—subsection (c), which expands the
definition of buyout agreements to include an agreement to settle a pending
unlawful detainer action filed within 120 days after buyout negotiations
commenced, and subsection (i), which requires a party who filed a buyout
agreement to inform the rent board whether it concerned an unlawful
detainer action and, if so, requires the Rent Board to redact confidential
information. With enforcement of these provisions enjoined, the buyout
ordinance no longer applies to any unlawful detainer action, and the
problems plaintiffs identified and the trial court found are remedied.
For the first time on appeal, plaintiffs seek to develop an argument
that some of the remaining provisions of Ordinance 36-20 place
impermissible burdens on litigation other than unlawful detainer cases. For
instance, they argue, the definition of “Buyout Agreement” is vague enough
that it might apply to any settlement of litigation, including other
proceedings between landlords and tenants such as an action for breach of
contract or ejectment, in violation of section 664.6. This contention fails.
Plaintiffs did not raise the point in the trial court, either in their petition or
in their arguments in support of issuing a writ. A party may ordinarily not
argue on appeal questions not presented to the trial court. (See County of Los
Angeles v. Southern California Edison Co. (2003) 112 Cal.App.4th 1108,
1118–1119 (County of Los Angeles).) Thus, to the extent plaintiffs attempt
now to raise a facial challenge to Ordinance 36-20’s effect on litigation other
than unlawful detainer actions, we do not consider the challenge.
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III. Severability
Plaintiffs argue, however, that sections (c) and (i) are not severable
from the rest of Ordinance 36-20, and the measure is unenforceable in its
entirety. As we have explained, the ordinance includes a severability clause,
which provides that if any portion is held to be invalid or unconstitutional,
“such decision shall not affect the validity of the remaining portions or
applications of the ordinance. The Board of Supervisors hereby declares that
it would have passed this ordinance and each and every section, subsection,
sentence, clause, phrase, and word not declared invalid or unconstitutional
without regard to whether any other portion of this ordinance or application
thereof would be subsequently declared invalid or unconstitutional.”
“ ‘Although not conclusive, a severability clause normally calls for
sustaining the valid part of the enactment, especially when the invalid part is
mechanically severable. . . . The final determination depends on whether the
remainder . . . is complete in itself and would have been adopted by the
legislative body had the latter foreseen the partial invalidity of the statute
. . . or constitutes a completely operative expression of the legislative intent
. . . [and is not] so connected with the rest of the statute as to be
inseparable.’ ” (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821;
accord, California Redevelopment Assn. v. Motosantos (2011) 53 Cal.4th 231,
270–271 (California Redevelopment).) Thus, “[t]he remaining portions must
constitute an independent operative expression of legislative intent, unaided
by the invalidated provisions. They cannot be rendered vague by the absence
of the invalidated provisions or be inextricably connected to them by policy
considerations. They must be capable of separate enforcement.” (Barlow v.
Davis (1999) 72 Cal.App.4th 1258, 1265.)
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These standards are easily met here. Section (c) of Ordinance 36-20,
which adds certain unlawful detainer settlements to the definition of
“ ‘Buyout Agreement’ ” and section (i), which adds discrete requirements if a
buyout agreement concerns an unlawful detainer action, may be removed
without affecting the wording or coherence of the remaining portions of the
ordinance. (See California Redevelopment, supra, 53 Cal.4th at p. 271.) And,
even aside from the severability clause, the ordinance was intended to—and
did—address at least two perceived problems unrelated to unlawful detainer
settlements.
The “Findings and Purpose” portion of Ordinance 36-20 identifies
multiple problems the ordinance was intended to address. After the concern
that landlords filed unlawful detainer actions to avoid the buyout ordinance,
“[a]nother concern” was that landlords used “the high pressure tactic of
giving tenants very little time to conduct buyout negotiations.” “Further,”
some landlords did not give their tenants the required disclosures of their
rights until negotiations were almost complete. The ordinance continued, “In
light of these various problems, this ordinance revised the Buyout Ordinance
to modify certain pre-notification disclosure rules, so that the process is fairer
and so that the City can better monitor compliance.” These independent
concerns were addressed by portions of Ordinance 36-20 other than sections
(c) and (i), such as the requirement that the landlord file a declaration under
penalty of perjury with the date and method of service used to give the tenant
the required disclosures (Ord. 36-20, § (e)(4)), the requirement that at least
30 days elapse between commencement of buyout negotiations and execution
of a buyout agreement (Ord. 36-20, § (f)(1)), and the provision allowing a
tenant to void language waiving rights or releasing claims if the landlord
does not file the agreement with the Rent Board within 59 days (Ord. 36-20,
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§§ (f)(2), (h)). These independent concerns support a conclusion that
Ordinance 36-20 would have been adopted even without the provisions
specifically applicable to unlawful detainer settlements.
We find no merit in plaintiffs’ argument that the City forfeited a claim
that the offending portions of Ordinance 36-20 should be severed from the
remainder of the enactment when it neither filed an answer to the petition
nor argued severability in its brief below. The City did, in fact, contend in its
ex parte application for entry of judgment that the ordinance was severable.
But, even assuming severability should have been raised as an affirmative
defense in an answer—a proposition for which plaintiffs provide no
authority—we have already explained that the trial court has its own duty to
fashion relief no broader than necessary to remedy the ordinance’s
shortcomings. (See O’Connell, supra, 141 Cal.App.4th at p. 1476, Butt, supra,4 Cal.4th at pp. 695–696.)
Finally, we see no due process violation in the manner in which the
trial court proceeded. Both parties filed ex parte applications seeking to have
the court enter a judgment that they argued would cure the legal violations
found by the court. Plaintiffs had notice of the City’s ex parte application and
an opportunity to present written arguments, both in support of their own
proposed judgment and in opposition to the City’s. Having raised no
objection in the trial court to proceeding on an ex parte basis, plaintiffs may
not press that point on appeal. (See County of Los Angeles, supra, 112
Cal.App.4th at pp. 1118–1119.)
In sum, plaintiffs fail to establish in their cross-appeal either
substantive or procedural error in the trial court’s decision to follow the
October 8 order with the December 11 judgment.
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DISPOSITION
The judgment is affirmed. Each party is to bear its own costs on
appeal.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
RODRÍGUEZ, J.
San Francisco Apartment Association et al. v. City & County of San Francisco (A161866)
26