The opinion
Filed 9/19/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SAN FRANCISCO APARTMENT
ASSOCIATION et al.,
Plaintiffs and Respondents,
v. A144702
CITY AND COUNTY OF SAN
FRANCISCO, (City and County of San Francisco
Super. Ct. No. CPF-14-513452)
Defendant and Appellant.
This is an appeal from the trial court’s grant of a writ of mandate and injunctive
relief in favor of plaintiffs San Francisco Apartment Association (SFAA), Coalition for
Better Housing (CBH), and San Francisco Association of Realtors (SFAR) (collectively,
plaintiffs). Plaintiffs sought this relief against defendant City and County of San
Francisco (City/County) on preemption grounds, asserting that a local ordinance, San
Francisco Planning Code, article 3, section 317, subdivision (e)(4) (hereinafter, section
317(e)(4) or Ordinance), absolutely conflicted with the Ellis Act of 1985, Government
Code section 7060 et seq. (hereinafter, Ellis Act).
The Ellis Act is a California statute that, among other things, protects property
owners’ right to exit the residential rental business. The Ordinance, in turn, was enacted
in its current form in December 2013 as part of Ordinance No. 287-13 in response to a
growing concern by the Board of Supervisors (and others) about the shortage of
affordable local housing and rental properties. Pursuant to section 317(e)(4), certain
residential property owners – to wit, those undertaking no-fault evictions, including so-
called Ellis Act evictions – became subject to a 10-year waiting period after withdrawing
1
a rental unit from the market before qualifying to apply for approval to merge the
withdrawn unit into one or more other units.1 Following several rounds of briefing and a
contested hearing, the trial court agreed with plaintiffs that the Ordinance impermissibly
penalized property owners for exercising their rights under the Ellis Act and, as such, was
facially void on preemption grounds. Accordingly, the trial court entered an order
enjoining the City/County from enforcing the Ordinance as to property owners
undertaking no-fault evictions pursuant to the Ellis Act.
On appeal, the City/County challenges the trial court’s reasoning and decision as
legally flawed, as well as the trial court’s threshold finding that plaintiffs had standing to
bring this preemption action.
For reasons to follow, we reject the City/County’s contention that plaintiffs lack
standing to bring this preemption action. In addition, we conclude, like the trial court,
that section 317(e)(4) is preempted by the Ellis Act to the extent it requires a landlord
effectuating a no-fault eviction to wait 10 years before applying for a permit to undertake
a residential merger on the property. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 28, 2014, plaintiffs filed a verified petition for writ of mandate and
complaint for injunctive and declaratory relief (petition) alleging the City/County
violated the Ellis Act by enacting section 317(e)(4) as part of the San Francisco Planning
Code. This provision provides in relevant part: “The [City’s] Planning Commission
shall not approve an application for merger if any tenant has been evicted pursuant to
[San Francisco] Administrative Code Sections 37.9(a)(9) through 37.9(a)(14) where the
tenant was served with a notice of eviction after December 10, 2013 if the notice was
1
A “residential merger” is defined by the San Francisco Planning Code as “the
combining of two or more legal Residential Units, resulting in a decrease in the number
of Residential Units within a building, or the enlargement of one or more existing units
while substantially reducing the size of others by more than 25% of their original floor
area, even if the number of units is not reduced.” (§ 317, subd. (b)(7).)
2
served within ten (10) years prior to filing the application for merger.”2 (§ 317(e)(4).)
The Administrative Code provisions referred to in section 317(e)(4) – namely,
sections 37.9(a)(9) through 37.9(a)(14) – set forth six permissible grounds for evicting a
non-faulting tenant, including conversion of the rental unit into a condominium and
temporary removal for the purpose of undertaking capital improvements or rehabilitative
work on the unit.3 (See S.F. Admin. Code, § 37.9, subds. (a)(9)-(a)(14).)
The Ellis Act, in turn, absolutely prohibits local government entities from
“compel[ling] the owner of any residential real property to offer, or to continue to offer,
accommodations in the property for rent or lease, except for guestrooms or efficiency
units within a residential hotel . . . .”4 (Gov. Code, § 7060, subd. (a).)
2
As the City/County notes, other subdivisions of the Ordinance create certain
exemptions from the requirement that property owners wait 10 years before merging two
or more residential units, including exemptions for units that are “demonstrably not
affordable or financially accessible housing,” or units owned by various governmental
entities. (§ 317, subds. (e)(3), (g).) In addition, section 317(e)(4) itself states: “This
Subsection (e)(4) shall not apply if the tenant was evicted under Section 37.9(a)(11) or
37.9(a)(14) and the applicant(s) either (A) have certified that the original tenant
reoccupied the unit after the temporary eviction or (B) have submitted to the Planning
Commission a declaration from the property owner or the tenant certifying that the
property owner or the Rent Board notified the tenant of the tenant’s right to reoccupy the
unit after the temporary eviction and that the tenant chose not to reoccupy it.”
(§ 317(e)(4).) However, plaintiffs have challenged only section 317(e)(4) as it applies to
mergers following evictions noticed pursuant to Administrative Code section (e)(13),
otherwise known as Ellis Act evictions.
3
Among other things, the San Francisco Administrative Code establishes
mandatory procedures that landlords must follow when withdrawing rental units from the
rental market, including service of a notice of termination of tenancy on all tenants in
possession of the unit and a notice of intent to withdraw rental units with the San
Francisco Rent Board prior to the withdrawal. (S.F. Admin. Code, § 37.9(a)(13).)
4
The Ellis Act was originally enacted to counteract a California Supreme Court
decision, Nash v. City of Santa Monica (1984) 37 Cal.3d 97, which upheld the
constitutionality of a city ordinance requiring owners of residential rental property who
wanted to remove their property from the rental market by demolition or conversion to
obtain a permit prior to removing it. As explained by our First District Appellate
colleagues: “The city would issue the mandatory permit only where (1) the property was
unoccupied by or unaffordable to a low- or moderate-income person, (2) the property’s
removal from the rental market would not adversely affect the housing supply, and
3
According to plaintiffs’ petition, section 317(e)(4) effectively undermines this
provision of the Ellis Act by “penaliz[ing] property owners who exercise their rights
under state law and thereby seek[ing] to compel continuing residential rentals,
notwithstanding the Ellis Act.” Plaintiffs thus sought the writ of mandate to enjoin the
City/County from “enforcing section (e)(4) insofar as it applies to owners who notice
evictions pursuant to Administrative Code section 37.9(a)(13) [to wit, Ellis Act
evictions].”
On February 27, 2014, the City/County answered the petition, denying that section
317(e)(4) “adversely affect[ed] the ability of [plaintiffs] to purchase, sell, manage or
otherwise control real property or to exercise their constitutional and statutory rights with
respect to real property they own or manage in San Francisco.” The City/County also set
(3) the owner could not make a reasonable return on investment. (Nash, supra, at
pp. 100-101.) Nash upheld the ordinance, holding that a residential rental property owner
does not have a constitutional right, free from government interference, to go out of the
rental business. (Id. at pp. 103-104.) [¶] The legislative response was passage of the Ellis
Act, which prohibits a city or county from enacting legislation that compels the owner of
residential real property to offer or continue to offer accommodations in the property for
rent or lease.” (Reidy v. City & County of San Francisco (2004) 123 Cal.App.4th 580,
587-588.)
Thus, in enacting the Ellis Act and thereby overturning this case law, the
Legislature expressly stated its intent in relevant part as follows: “It is the intent of the
Legislature in enacting this chapter to supersede any holding or portion of any holding in
Nash v. City of Santa Monica, supra, 37 Cal.3d 97 to the extent that the holding, or
portion of the holding, conflicts with this chapter, so as to permit landlords to go out of
business. However, this act is not otherwise intended to do any of the following:
“(a) Interfere with local governmental authority over land use, including regulation of
the conversion of existing housing to condominiums or other subdivided interests or to
other nonresidential use following its withdrawal from rent or lease under this chapter.
“(b) Preempt local or municipal environmental or land use regulations, procedures, or
controls that govern the demolition and redevelopment of residential property.
“(c) Override procedural protections designed to prevent abuse of the right to evict
tenants.
“(d) Permit an owner to withdraw from rent or lease less than all of the
accommodations, as defined by paragraph (1) or (2) of subdivision (b) of Section
7060. . . .” (Gov. Code, § 7060.7, subds. (a)-(d).)
4
forth several affirmative defenses, including lack of standing, police power and
separation of powers.
On December 18, 2014, the trial court granted the writ of mandate and declared
section 317(e)(4) facially invalid and unenforceable insofar as it applies to landlords who
notice evictions pursuant to the Ellis Act. The trial court reasoned the Ordinance
improperly sought to restrain plaintiffs from permanently exiting the residential rental
business by requiring a 10-year waiting period before approval could be obtained for
merging two or more units of the property. The trial court thus permanently enjoined the
City/County and its agents and representatives from enforcing section 317(e)(4) as to
landlords who notice evictions pursuant to the Ellis Act. The trial court entered judgment
in plaintiffs’ favor on December 18, 2014. This appeal of the trial court’s ruling
followed.
DISCUSSION
The City/County raises three primary contentions on appeal. First, the
City/County contends that, as a threshold matter, plaintiffs have not established their
associational standing to bring this action, requiring reversal on jurisdictional grounds
without regard to the merits of their petition. Second, the City/County contends that, in
any event, the Ordinance is a valid exercise of the police power preserved for local
governments by the California Constitution. (Cal. Const., art. XI, § 7 [“A county or city
may make and enforce within its limits all local, police, sanitary, and other ordinances
and regulations not in conflict with general laws”].) As such, the City/County reasons,
the Ordinance is not preempted by the Ellis Act, a state statute that expressly reserves for
local governments the authority to enact such land use laws within their confines.5 And
5
As will be discussed in more detail below, the Legislature amended the Ellis Act
in 1999, confirming its intent to protect the right of landlords to go out of business, while
adding new language to section 7060.7 to clarify that the Act is “not otherwise intended
to . . . [¶] (a) Interfere with local governmental authority over land use, including
regulation of the conversion of existing housing to condominiums or other subdivided
interests or to other nonresidential use following its withdrawal from rent or lease under
[the Act]. [¶] (b) Preempt local or municipal environmental or land use regulations,
5
finally, the City/County contends that, even assuming the Ordinance could, in certain
situations, apply in a manner in conflict with the Ellis Act, plaintiffs herein have mounted
a facial challenge to the Ordinance, requiring a showing that “no set of circumstances
exist under which the [law] would be valid.” (See Association of California Ins. Cos. v.
Poizner (2009) 180 Cal.App.4th 1029, 1054). Here, the City/County insists, plaintiffs
have failed to make this requisite showing of facial invalidity. We address these issues in
turn below.
I. Do Plaintiffs Have Standing to Bring this Action?
As an initial matter, the City/County challenges plaintiffs’ associational standing
to bring this action for writ relief on behalf of their members. The applicable law is not
in dispute.
“A litigant’s standing to sue is a threshold issue to be resolved before the matter
can be reached on its merits. [Citation.] Standing goes to the existence of a cause of
action (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 862, p. 320), and the lack of
standing may be raised at any time in the proceedings. [Citations.]” (Apartment
Association of Los Angeles County v. City of Los Angeles (2006) 136 Cal.App.4th 119,
128 [Apartment Association].) “ ‘ “ ‘An association has standing to bring suit on behalf
of its members when: (a) its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.’ ” ’ [Citation.] [Citation.]” (Apartment Association,
supra, 136 Cal.App.4th at p. 129.)
Here, the City/County disputes the existence of just one of the three identified
criteria: The standing of individual members to sue on their own behalf. According to
the City/County, plaintiffs have failed to establish their individual members could have
challenged the validity of the Ordinance in their own right because they have failed to
prove their members are “beneficially interested” in the outcome of these proceedings.
procedures, or controls that govern the demolition and redevelopment of residential
property.” (§ 7060.7, subds. (a), (b).)
6
(See Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155,
165 [“As a general rule, a party must be ‘beneficially interested’ to seek a writ of
mandate. (Code Civ. Proc., § 1086.)”]; see also Friends of Oceano Dunes, Inc. v. San
Luis Obispo Air Pollution Control Dist. (2015) 235 Cal.App.4th 957, 962 [for standing
purposes, the “beneficial interest must be direct and substantial”].)
Below, the trial court found plaintiffs had satisfactorily proved the beneficial
interest of their members, reasoning that section 317(e)(4) “infringes on the[] [members’]
right to own, manage and serve as agents for rental properties in San Francisco which are
regulated by section 317(e)(4).” According to the trial court: “Section 317(e)(4) directly
infringes on the constitutional right of SFAA and CBH members to exit the rental market
under the Ellis Act. [Citation.] Similarly, section 317(e)(4) adversely affects the ability of
real estate agents and brokers, represented by SFAR, to market, sell, and manage rental
properties located in the City and County of San Francisco. [Citation.] Thus, the
individual members of the three petitioner organizations will be injured by 317(e)(4) if it
is enforced, and as such could have challenged the Ordinance in their own right.”
We conclude the trial court’s findings on the threshold issue of standing are
adequately supported by evidence in the record in the form of sworn declarations
submitted by three individuals on behalf of plaintiffs. For example, Janan New,
Executive Director of SFAA, filed a declaration attesting that, among other things, the
plaintiff organization had 2,800 active members that collectively own more than 65,000
residential units. As soon as the Ordinance passed, New received numerous calls from
members protected under the Ellis Act asking how the new law would apply to residential
properties in San Francisco and for the organization to file a lawsuit in order to protect
their rights.
Brook Turner, Executive Director of CBH, filed a declaration, in turn, attesting
that, collectively, CBH’s members own more than 20,000 residential units in San
Francisco, and that each member is protected by the Ellis Act and would be subject to the
merger ban under section 317(e)(4) to their detriment.
7
And, finally, Walter Baczkowski, Chief Executive Officer of SFAR, filed a
declaration attesting that its 4,200 agent/broker members are engaged for their livelihood
in the sale or rental of residential real property in San Francisco and would be adversely
affected by continued enforcement of section 317(e)(4). As one example of such adverse
effects, Baczkowski pointed out that SFAR members are harmed when the Ordinance
discourages prospective buyers from purchasing buildings in San Francisco where Ellis
Act evictions have occurred in situations where the prospective buyers seek to merge
units in the building to, e.g., form and occupy a single family residence.
This evidentiary showing is adequate to prove plaintiffs’ associational standing.
The fact that plaintiffs did not offer proof that each individual member had suffered, or
was at imminent risk of suffering, actual injury is of no moment. The City/County
directs us to no legal authority suggesting otherwise. Rather, the relevant authority
makes clear 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.’ [Citation.] . . . [To the contrary,] [w]rit relief is not available if the
petitioner gains no direct benefit from the writ’s issuance, or suffers no direct detriment
from its denial. [Citation.]” (League of California Cities v. Superior Court (2015) 241
Cal.App.4th 976, 985. Accord Apartment Association, supra, 136 Cal.App.4th at
pp. 127-129 [individual members of a trade organization representing owners and
managers of residential rental property in the City had standing to challenge a municipal
rent stabilization ordinance where said members were subject to the ordinance and, thus,
were or could become subject to its restrictions on collecting excessive rent from
qualified low income, disabled or senior tenants]; Associated Builders & Contractors,
Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 363 [“if . . . [plaintiff
organization] could demonstrate that the [project stabilization agreement] specification
has the effect of infringing its members’ rights of association or expression, or that it has
an anticompetitive impact on them, then [it] might legitimately claim a beneficial interest
within the meaning of Code of Civil Procedure section 1086”].) And, here, this standard
8
has been met given the evidence in plaintiffs’ sworn declarations that thousands of their
individual members are involved in the sale and rental of residential rental properties in
San Francisco, are protected by the Ellis Act, and would or could be negatively impacted
by the continued enforcement of the Ordinance’s 10-year merger ban in buildings where
Ellis Act evictions have occurred.
Accordingly, we affirm the trial court’s threshold finding that plaintiffs have
associational standing to bring this action and proceed to the merits.
II. Is Section 317(e)(4) a Valid Exercise of Local Government Authority or
Fatally Inconsistent with State Law?
The City/County’s central challenge is to the trial court’s finding that the
Ordinance is facially invalid and unenforceable insofar as it applies to landlords seeking
approval to merge residential units after undertaking an Ellis Act eviction on their
property. The parties agree the de novo standard of review governs. (Johnson v. City
and County of San Francisco (2006) 137 Cal.App.4th 7, 12; Fiscal v. City & County of
San Francisco (2008) 158 Cal.App.4th 895, 904 [“A trial court’s decision invalidating a
local ordinance on grounds of preemption is reviewed de novo”].) The well-established
principles of preemption are as follows.
A. The Principles of Preemption.
“ ‘[A] county or city may make and enforce within its limits all local, police,
sanitary, and other ordinances and regulations not in conflict with general laws.’ (Cal.
Const., art. XI, § 7.) ‘Land use regulation in California historically has been a function of
local government under the grant of police power contained in article XI, section 7 . . . .
“We have recognized that a city’s or county’s power to control its own land use decisions
derives from this inherent police power, not from the delegation of authority by the
state.” ’ (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1151
[45 Cal.Rptr.3d 21, 136 P.3d 821], fn. omitted (Big Creek Lumber Co.).) Consistent with
this principle, ‘when local government regulates in an area over which it traditionally has
exercised control, such as the location of particular land uses, California courts will
presume, absent a clear indication of preemptive intent from the Legislature, that such
9
regulation is not preempted by state statute.’ (Id., at p. 1149; see [citation.])” (City of
Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th
729, 742-743 (City of Riverside).)
However, a local ordinance may not conflict with state law; if it does, it is void.
(City of Riverside, supra, 56 Cal.4th at p. 743; see also Sherwin-Williams Co. v. City of
Los Angeles (1993) 4 Cal.4th 893, 897 (Sherwin-Williams).) For purposes of the
preemption analysis, local legislation conflicts with state law if it “ ‘duplicates,
contradicts, or enters an area fully occupied by general law, either expressly or by
legislative implication.’ ” ’ [Citations.]” (Sherwin-Williams, supra, at p. 897.) To
“duplicate” state law, the local legislation must be “coextensive therewith.” (Ibid.) To
“contradict” state law, the local legislation must be “inimical thereto.” (Ibid.) Moreover,
the “ ‘contradictory and inimical’ form of preemption does not apply unless the ordinance
directly requires what the state statute forbids or prohibits what the state enactment
demands.” (City of Riverside, supra, 56 Cal.4th at p. 743.) In other words, if “it is
reasonably possible to comply with both the state and local laws,” there is no inimical
conflict. (Ibid.)
To enter an area “fully occupied” by general law, in turn, the Legislature must
either expressly or impliedly manifest the intent to so occupy the area. Express intent is
where the Legislature has directly stated that the field has been occupied. Implied intent,
on the other hand, is where “ ‘(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’ locality. [Citations.]”
(Sherwin-Williams, supra, 4 Cal.4th at pp. 897-898; City of Riverside, supra, 56 Cal.4th
at p. 743; see also California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177,
188.) In the words of the California Supreme Court: “ ‘We have been particularly
10
“reluctant to infer legislative intent to preempt a field covered by municipal regulation
when there is a significant local interest to be served that may differ from one locality to
another.” ’ [Citations.] ‘ “The common thread of the cases is that if there is a significant
local interest to be served which may differ from one locality to another then the
presumption favors the validity of the local ordinance against an attack of state
preemption.” ’ [Citations.]” (City of Riverside, supra, 56 Cal.4th at p. 744.)
Finally, in performing the preemption analysis, we must keep in mind the general
rule that the validity of a legislative enactment hinges on the enactment’s actual operation
and effect rather than the subjective motivation of the legislators: “ ‘[The] rule is general
with reference to the enactments of all legislative bodies that the courts cannot inquire
into the motives of the legislators in passing them, except as they may be disclosed on the
face of the acts, or inferrible from their operation, considered with reference to the
condition of the country and existing legislation. The motives of the legislators,
considered as the purposes they had in view, will always be presumed to be to
accomplish that which follows as the natural and reasonable effect of their enactments.”
(County of Los Angeles v. Superior Court (1975) 13 Cal.3d 721, 726 citing Soon Hing v.
Crowley (1885) 113 Cal. 703, 710-711, italics added.) Thus, “[p]urpose alone is not a
basis for concluding a local measure is preempted. While [reviewing courts] have
occasionally treated an ordinance’s purpose as relevant to state preemption analysis
[citations], we have done so in the context of a nuanced inquiry into the ultimate question
in determining field preemption: whether the effect of the local ordinance is in fact to
regulate in the very field the state has reserved to itself.” (California Grocers Assn. v.
City of Los Angeles, supra, 52 Cal.4th at p. 190, fn. omitted.)
Returning to this case, the trial court found section 317(e)(4) preempted by the
Ellis Act because the Ordinance “penalizes landlords for leaving the rental business by
banning any mergers in a building for ten years after a landlord removes the property
from the rental market under the Ellis Act. Such punishments are preempted, regardless
of whether they take the form of formal permits, additional notification requirements,
waiver of future rights, or burdens on a landlord’s exercise of his or her rights, because
11
they directly contradict state law by penalizing and discouraging conduct that the Ellis
Act expressly authorizes.”6 In so finding, the trial court noted that, according to statistics
from the San Francisco Rent Board, of the four types of no-fault evictions subject to the
10-year merger ban under section 317(e)(4), Ellis Act evictions are “by far the most
common ground [for eviction], and so is the de facto prime target of [the Ordinance].”
Accordingly, the trial court declared the Ordinance facially void. Having applied the
legal principles set forth above, we agree with the trial court’s conclusion. To explain
why, we first look more closely at these two laws.
B. The Interplay Between the Ellis Act and Section 317(e)(4).
As stated above, the Ellis Act provides real property owners the absolute right to
exit the residential rental business. “ ‘The legislative history of the Act consistently
demonstrates the purpose of the Act is to allow landlords who comply with its terms to go
out of the residential rental business by evicting their tenants and withdrawing all units
from the market, even if the landlords could make a fair return, the property is habitable,
and the landlords lack approval for future use of the land. In addition to the statement of
legislative intent contained in the Act (Gov. Code, § 7060.7), the various legislative
committee reports concerning the Act indicate the 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. (See Sen. Com. on Judiciary (1985-1986),
Reg. Sess., Analysis of Sen. Bill No. 505, Local Controls Residential Real Property, p. 2
[“The purpose of this bill is to overturn Nash and to provide landlords the unfettered right
to remove rental units from the marketplace”]; [citations] . . . .)’ Thus, the Ellis Act was
clearly meant to preempt any local ordinance that prohibited a landlord from removing its
rental units from the marketplace. (Gov. Code, § 7060.7; Javidzad v. City of Santa
6
In finding the Ordinance preempted by the Ellis Act, the trial court expressly
relied on the following cases, which will be discussed in depth below: Reidy v. City &
County of San Francisco (2004) 123 Cal.App.4th 580, 588; Javidzad v. City of Santa
Monica, supra, 204 Cal.App.3d at p. 530; and L.A. Lincoln Place Investors, Ltd. v. City
of Los Angeles (1997) 54 Cal.App.4th 53, 61-62.
12
Monica (1988) 204 Cal.App.3d 524, 530 . . . [(Javidzad)]; City of Santa Monica v.
Yarmark [(1988)] 203 Cal.App.3d [153,] 165 . . . ; accord, Channing Properties v. City of
Berkeley (1992) 11 Cal.App.4th 88, 94 . . . .” (L.A. Lincoln Place Investors, Ltd. v. City
of Los Angeles (1997) 54 Cal.App.4th 53, 61-62 (Lincoln Place I).)
At the same time, however, courts both recognize and respect the reservations of
power set forth in the Ellis Act with respect to local government authorities:
“Notwithstanding Section 7060, nothing in this chapter does any of the following: [¶] . . .
[¶] (b) Diminishes or enhances . . . any power which currently exists or which may
hereafter exist in any public entity to grant or deny any entitlement to the use of real
property, including, but not limited to, planning, zoning, and subdivision map approvals.”
(§ 7060.1, subd. (b).) Meanwhile, elsewhere in the Ellis Act, the legislature expressly
denies any intent to, among other things, “[i]nterfere with local governmental authority
over land use,” “[p]reempt local . . . land use regulations, procedures, or controls that
govern the demolition and redevelopment of residential property,” or “[o]verride
procedural protections designed to prevent abuse of the right to evict tenants.” (Gov.
Code, § 7060.7, subds. (a)-(c).) Considered in its entirety, “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)), [but] it ‘completely occupies the
field of substantive eviction controls over landlords who wish to withdraw’ all units from
the residential rental market. [Citation.]” (Johnson, supra, 137 Cal.App.4th at p. 14.)
Not surprisingly, in our case, the parties disagree on whether section 317(e)(4) has
the effect of regulating in the very field the state has expressly reserved to itself vis-à-vis
the Ellis Act, or of regulating in one of the fields reserved under the Act for local
government entities. For its part, the City/County denies the Ordinance violates any
conduct or activity prohibited under the Ellis Act, and insists the preemption doctrine is
simply not applicable. In support of its contention, the City/County argues, first, that the
Ordinance does not “target” properties subject to Ellis Act evictions because it imposes
the same 10-year waiting period on applications to merge housing units that have been
the subject of several types of “no-fault” evictions, not just Ellis Act evictions.
13
Additionally, the City/County denies the Ordinance in any way penalizes property
owners for exercising their rights under the Ellis Act because it “does not condition the
right to leave the rental market on fulfillment of any prerequisites, payment of any fee, or
satisfaction of any pre-condition that could result in a defense to an unlawful detainer
action.”
Turning to the City/County’s first point, we disagree with its premise that the
preemption analysis turns on whether a local ordinance “targets properties” subject to the
Ellis Act. Rather, as the case law from above makes clear, our analysis focuses more
broadly on whether the local ordinance “ ‘duplicates, contradicts, or enters an area fully
occupied by general law . . . .’ ” (Sherwin-Williams, supra, 4 Cal.4th at p. 897.) Further,
as our First District colleagues have held, the state, by means of the Ellis Act,
“completely occupies the field of substantive eviction controls over landlords” desiring to
exit the residential rental market. (Johnson, supra, 137 Cal.App.4th at p. 14.) As such,
the key issue here is not whether the Ordinance imposes a 10-year waiting period only on
Ellis Act evictions, or on a variety of no-fault evictions. Rather, the issue is whether the
Ordinance enters into the field of “substantive eviction controls over landlords” that has
been reserved for the State.7 (See ibid.) And, for reasons explained below, when the
Ordinance is considered in this light, it becomes clear the City/County’s second point – to
7
Below, the trial court took judicial notice of the San Francisco Rent Board’s
published statistics on eviction notices from 2013 through 2015. Based upon these
statistics, the trial court found that, as a practical matter, Ellis Act evictions are the
primary type of no-fault eviction affected by the Ordinance. Specifically, pointing out
that several types of evictions fall outside the Ordinance’s 10-year ban (including owner
move-ins, capital improvements and lead abatement), the trial court explained that,
“[u]ltimately, only four no-fault eviction types face an absolute 10-year ban:
(1) condominium conversion, (2) demolition of unit, (3) substantial rehabilitation, and
(4) Ellis Act. However, of these four types of no-fault evictions subject to the 10-year
ban, Ellis Act evictions are “by far the most common [one], and so is the de facto prime
target of [the Ordinance].” The City/County has not challenged this finding by the trial
court. And while it is certainly not a dispositive factor, it is nonetheless relevant under
our preemption analysis to whether the City/County invaded a field fully occupied by
state law.
14
wit, that the Ordinance does not amount to a substantive limit on the right of a landlord to
withdraw units from the rental market – lacks merit.
Specifically, we conclude the Ordinance does in fact penalize property owners
who leave the residential rental market, at least those property owners leaving the market
for the purpose of merging a withdrawn rental unit with one or more of the owners’ other
units. In fact, the Ordinance also penalizes owners seeking to merge multiple units of
their property for the purpose of selling the property as a single family residence, and not
just to exercise their personal right to exit the residential rental market. In both
situations, the Ordinance imposes a mandatory 10-year waiting period on the property
owners, running from the date on which notice of eviction is served upon the tenant of
the unit to be withdrawn from the rental market, before the owners may apply to the
planning commission for the appropriate permit to merge the units. In doing so, the
Ordinance imposes a mandatory restriction on the rights of property owners that far
exceeds the scope of permissible local governance delineated by the Ellis Act.
The City/County nonetheless maintains that the Ordinance merely, and
permissibly, regulates the particulars of a landlord’s proposed merger of residential units.
We disagree. Indeed, our appellate colleagues in this District have aptly explained the
difference between permissible local “regulation” of residential rental property and
impermissible infringement upon a landlord’s exercise of Ellis Act rights:
“Following the 1985 enactment of the Ellis Act, appellate courts uniformly concluded
that the act bars local ordinances that condition a residential landlord’s right to go out of
business on compliance with requirements that are not found in the Ellis Act. The courts
also uniformly concluded that a city retains its traditional police power to regulate the
subsequent use of the property after the property’s removal from the rental market. Thus,
for example, if an ordinance requires a residential landlord to obtain a removal permit
before removing a rent-controlled rental unit from the rental housing market by
demolition or conversion, and further requires that the landlord must satisfy specified
criteria before the removal permit will issue, the ordinance infringes on the landlord’s
decision to go out of the rental housing business and conflicts with the Ellis Act.
15
However, the city retains the authority to regulate the particulars of the demolition and
the redevelopment of the property after it is withdrawn from the rental market.” (Reidy v.
City & County of San Francisco (2004) 123 Cal.App.4th 580, 588 (Reidy).)
We agree with this analysis. Further, we conclude, contrary to the City/County’s
contention, that a 10-year prohibition on removing a rental unit from the market for the
purpose of merger is more akin to a substantive requirement triggered upon a landlord’s
notice of intent to remove a rental unit from the rental housing market than to local
regulation of “the particulars of the demolition and the redevelopment of the property
after it is withdrawn . . . .” (Reidy, supra, 123 Cal.App.4th at p. 588.) Specifically, rather
than regulating the particulars of a landlord’s proposed merger (or demolition or
conversion) of a residential unit, section 317(e)(4) prohibits a landlord withdrawing a
residential unit from the rental market from merging the unit with another unit for 10
years. In doing so, section 317(e)(4) imposes a penalty on the very class entitled to
protection under the Ellis Act – to wit, landowners seeking to exit the residential rental
business. As such, under the legal authority cited above, section 317(e)(4) is indeed
invalid. (Accord Lincoln Place I, supra, 54 Cal.App.4th at pp. 63, 65 [rejecting argument
that “its ordinance is not preempted because it does not provide a substantive barrier to a
landlord’s right to go out of the rental business but only imposes a procedural
requirement that must be met before the application to demolish is granted”]; Javidzad,
supra, 204 Cal.App.3d 524.) Moreover, contrary to the City/County’s related argument,
the fact that this 10-year ban on applying for merger approval begins to run when the
landlord exits the residential rental business rather than before the landlord exits the
business does not make this ban any less of a penalty triggered by the landlord’s exercise
of Ellis Act rights.
The City/County attempts to distinguish this case from those striking down local
ordinances as fatally inconsistent with the Ellis Act, including Lincoln Place I, Reidy and
Javidzad. The City/County reasons that, unlike in those other cases, here, a landlord
remains free to exit the rental market and to use his or her property in any number of
authorized ways, subject only to the Ordinance’s 10-year waiting period if the landlord
16
intends to merge the withdrawn unit with another. However, examination of these cases
reveals the flaw in the City/County’s analysis.
In Javidzad, for example, the invalidated local ordinance prohibited a landowner
from demolishing a rental unit unless the landowner first qualified for and obtained a
removal permit. To qualify and obtain this permit, the landowner had to do one of three
things: (1) demonstrate the landowner could not make a fair return on the rental unit(s);
(2) demonstrate the property was uninhabitable; or (3) promise to develop new units
subject to rent control. Finding this ordinance invalid on preemption grounds, our
appellate colleagues reasoned that it impermissibly conditioned the landowner’s right to
exit the residential rental business on compliance with requirements not found in the Ellis
Act. In so finding, the court rejected the defendant’s argument, similar to the
City/County’s argument herein, that the local ordinance was merely a land use regulation
that, consistent with the Ellis Act, authorized permanent demolition, conversion, or
alteration of the withdrawn units: “[Appellants] submit that in passing the Act, the
Legislature intended nothing more than to enable a landlord to go out of business by
evicting all the tenants residing in a building, and a property owner who has done so has
obtained the full benefit of the Act. Appellants do recognize the denial of a removal
permit precludes the redevelopment of a property. They insist, however, a landlord who
is thereby left with a vacant apartment building is merely paying the price of choosing to
go out of business! [¶] Appellants’ strained reading of the Act would result in an
absurdity. Denying . . . a removal permit to a landlord who has gone out of the rental
housing business imposes a prohibitive price on the exercise of the right under the Act.”
(Javidzad, supra, 204 Cal.App.3d at pp. 530-531.)
Similarly, in Reidy, supra, 123 Cal.App.4th 580, a preemption challenge was
made under the Ellis Act to a local ordinance making it unlawful to change the use of,
eliminate, or demolish a residential hotel unit without first obtaining a permit to convert.
However, before this permit would issue, the hotel owner was required to provide one-
for-one replacement of the units to be converted by constructing or bringing onto the
market new residential units meeting certain requirements or, alternatively, by paying an
17
in-lieu fee. Again, the appellate court declined to accept the defendant/local
government’s argument that this permit to convert was merely a land use regulation that
did not implicate or infringe upon a landlord’s right to exit the residential rental business:
“Because section 41.20, subdivision (a)(1) of the HCO makes it unlawful for a residential
hotel owner to change the use of, or eliminate a residential hotel unit without first
obtaining a permit to convert, and sections 41.13 and 41.14 do not allow the issuance of a
conversion permit until the owner provides replacement housing, these sections
effectively conditioned the right of a City and County of San Francisco hotel owner to go
out of the rental business before January 1, 2004, on compliance with requirements that
were not found in the pre-2004 Ellis Act.” (Reidy, supra, 123 Cal.App.4th at p. 593.) As
such, the plaintiffs’ challenge succeeded. (Ibid.)
Lastly, in Lincoln Place I, a city ordinance prohibited the plaintiff landowners
from demolishing their rental units unless they first obtained a removal permit, which, in
turn, required as a precondition their agreement to sign a covenant restricting use of the
property for either themselves or for “any purchaser, encumbrancer, assignee, devisee
and transferee” for a period of 10 years after the date of demolition. (Lincoln Place I,
supra, 54 Cal.App.4th at p. 64.)8 According to our Second District, Division Five
colleagues, this local ordinance was void as applied to the plaintiff landowners because it
imposed a “prohibitive price” on their right to exit the rental business by preconditioning
issuance of the necessary demolition permit on meeting requirements not found in the
Ellis Act. (Id. at pp. 64-65 [declining to “construe th[e] ordinance as simply a means by
which the city is exercising its power to determine whether a future use of the property
will conflict with its general plan because the ordinance also impermissibly prevents the
plaintiffs from exercising their right to simply go out of the rental business”].)
The principle readily distilled from these cases is that a public entity may not
impose an inevitable and undue burden (to wit, a “prohibitive price”) on a landlord’s
8
There was an exemption under the ordinance for those landowners intending to
use the property to develop low income housing. (Lincoln Place I, supra, 54 Cal.App.4th
at p. 64.)
18
exercise of its right under the Ellis Act to exit the residential rental business. (E.g.,
Lincoln Place I, supra, 54 Cal.App.4th at p. 65; see also Pieri v. City & County of San
Francisco (2006) 137 Cal.App.4th 886, 893 (Pieri); Johnson, supra, 137 Cal.App.4th at
p. 14 [“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’ ”].) Further, applying this principle here, we find no valid basis to
distinguish section 317(e)(4) from the invalidated local ordinances discussed above.
Reasonably construed, section 317(e)(4), like the other invalidated measures, prevents
landowners from exercising their right to simply go out of business. (Javidzad, supra,
204 Cal.App.3d at pp. 530-531; see also Reidy, supra, 123 Cal.App.4th at pp. 590-591.)
While the City/County may be correct that local governments retain the right under the
Act to “to regulate the subsequent use of the property following its removal from the
rental market,” here, the City/County has, in effect, barred landowners from using their
property if their proposed use involves merging a withdrawn unit with another. The fact
that the City/County may have been motivated in part by the worthy goal of preserving
the stock of affordable housing is of no moment. Under the legal authority cited above,
such exercise of local power is invalid, as it constitutes local intrusion into the wholly
state-occupied field of substantive eviction controls over landlords wishing to withdraw
units from the residential rental market.9 (See Reidy, supra, 123 Cal.App.4th at p. 592
9
If there could be any doubt section 317(e)(4) was intended — at least on some
level — to punish or, at minimum, discourage landlords from conducting Ellis Act and
other no-fault evictions, it is dispelled by the Ordinance’s legislative history. Prior to its
enactment, the Ordinance’s sponsor, Supervisor John Avalos, stated that his intent was to
“propose an additional amendment to prevent owners from evicting tenants to either alter
a nonconforming unit or to convert, merge, or demolish a unit,” albeit in furtherance of
the commendable goal of protecting tenants and preserving the City’s stock of affordable
housing. And while the motive or purpose of individual legislators does not determine
the validity of an ordinance (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1093), in
this case, the legislative body (Board of Supervisors) incorporated into section 1,
subdivision (c) of Ordinance No. 287-13 the express findings that “the Department is
supportive of efforts to discourage displacing tenants through no-fault evictions” and that
“the proposed additional modifications would create a disincentive to evict by linking no-
19
[“Legislature did not intend the 2000 amendments [to the Ellis Act] to permit cities to
promulgate land use regulations applicable to property subsequent to an Ellis Act filing,
if those regulations effectively compel residential rental use and prevent the property
owner from quitting the rental business”]; First Presbyterian Church v. City of Berkeley
(1997) 59 Cal.App.4th 1241, 1249 [“[t]he trial court correctly ruled: (1) the Ellis Act
‘provides landlords with the right to go out of the rental business’; (2) the Ellis Act
preempts the NPO and the LPO ‘in so far as they interfere with and restrain the ability of
landlords seeking to remove . . . rental units from the rental market’; and (3) the NPO is
therefore ‘invalid and of no force and effect to the extent that issuance of a demolition
permit [under the NPO] would require findings as to future construction of units or
habitability of the structure to be demolished’ ”] (First Presbyterian Church). Cf.
Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 451
[Lincoln Place II] [mitigation conditions approved by the City’s planning commission
did not impermissibly burden landowner’s right to go out of the rental business because:
(1) the landowner agreed to the conditions; (2) the landowner could exit the rental
business upon completion of the conditions; and (3) the conditions “are not particularly
onerous, and do not preclude [the landowner] from ultimately going out of the rental
business at the site”]; Pieri, supra, 137 Cal.App.4th at p. 892 [“We cannot conclude . . .
the imposition of relocation assistance payments must inevitably place an undue burden
fault evictions to a prohibition to merge, convert, or to demolish a unit.” (See also
Planning Commission Resolution No. 19009 (italics added).) As such, the legislative
purpose to, essentially, interfere with those exercising their State-guaranteed Ellis Act
rights has been made part of the San Francisco Planning Code itself. And, as mentioned
above, legislative intent is relevant in the preemption context when determining whether
a local ordinance “enters a field ‘fully occupied’ by [state] law” (see Sherwin-Williams,
supra, 4 Cal.4th at p. 898), because such intent may be reflective of the intended scope of
local control. (See Johnson, supra, 137 Cal.App.4th at p. 14 [noting the Ellis Act
“completely occupies the field of substantive eviction controls over landlords who wish
to withdraw [units] from the residential rental market,” but leaves to local public entities
the right to, among other things, regulate land use].) As such, we conclude the
undeniable fact that the Board sought to discourage or penalize Ellis Act evictions when
enacting section 317(e)(4) is relevant to (and weighs in favor of) our preemption analysis,
even if it is not dispositive.
20
on a landlord’s right to withdraw from the rental business” given that, “[i]n stating that it
neither diminishes nor enhances the power of public entities to mitigate adverse impacts
on displaced tenants, [§ 7060.1(c)] clearly contemplates that public entities have some
such power under existing law”].) Thus, because the Ordinance constructs an inevitable
substantive barrier to the statutorily-protected right of a landlord to leave the residential
rental business, we stand by the trial court’s decision to invalidate it.10
In attempting to avoid this conclusion, the City/County raises the additional
argument that Reidy, Javidzad and First Presbyterian Church are no longer good law in
light of the Legislature’s 1999 amendment to the Ellis Act. In doing so, the City/County
directs us to a select part of the legislative history of the 1999 amendment to the Ellis
Act, quoted in Lincoln Place II: “ ‘Since the Ellis Act was adopted in 1986, a string of
court decisions has undermined the compromise reached in Ellis between the rights of a
property owner to remove rental units from the market and the ability of a local
government to mitigate the effects of tenant displacement and to regulate the subsequent
use of the property.’ (Sen. Housing & Community Development Com., Analysis of Sen.
Bill No. 948 (1999–2000 Reg. Sess.) Apr. 5, 1999, Comments, para. 4.) The amendments
to the Ellis Act ‘make[] it clear that local governments have authority to regulate the
demolition of rental property and the authority to regulate the conversion of non-
residential use following its withdrawal from rent or lease.’ (Sen. Housing & Community
Development Com., 3d reading analysis of Sen. Bill No. 948 (1999–2000 Reg. Sess.) as
amended Aug. 16, 1999, Comments, para. 3.)” (Lincoln Place II, supra, 155 Cal.App.4th
10
As the City/County points out, the San Francisco Planning Code provides for a
review process whenever a landowner applies for a permit to demolish, merge or convert
a residential unit, which, among other things, requires the planning commission to
consider the effect of the proposed demolition, merger or conversion on the number of
affordable rental units in the surrounding area. There is no challenge under the Ellis Act
to this discretionary process. In any event, it appears consistent with the inherent police
power of local governments to regulate land use, a power expressly recognized by the
Act, in that planning commission review of permit applications does not, in and of itself,
extract a penalty from landlords seeking to exit the residential rental market. However,
for the reasons stated above, the Ordinance at issue goes far beyond mandating a
discretionary review.
21
at p. 443.) We conclude nothing in the above-quoted passage establishes legislative
intent to overrule long standing case law. When our Legislature intends to overrule case
law, it makes such an intent clear, as it did when enacting the Ellis Act in the first place.
(See, e.g., Gov. Code, § 7060.7 [“It is the intent of the Legislature in enacting this chapter
to supersede any holding or portion of any holding in Nash v. City of Santa Monica, 37
Cal.3d 97 to the extent that the holding, or portion of the holding, conflicts with this
chapter, so as to permit landlords to go out of business”].) Here, the Legislature does not
even mention the aforementioned cases, much less express the intent to overrule them.
Rather, the Legislature expressly states that its intent in passing the 1999 amendment was
to clarify the Ellis Act does not “[p]reempt local or municipal environmental or land use
regulations, procedures, or controls that govern the demolition and redevelopment of
residential property” (Gov. Code, § 7060.7, subd. (b)), diminish or enhance “any power
which currently exists or which may hereafter exist in any public entity to grant or deny
any entitlement to the use of real property, including, but not limited to, planning, zoning,
and subdivision map approvals.” (Gov. Code, § 7060.1, subd. (b).) Under these
circumstances, we decline the City/County’s invitation to in any way alter or add to the
Legislature’s express intent with respect to the 1999 amendment.11 (People v. Davenport
(1985) 41 Cal.3d 247, 266 [“it should not be presumed that the legislative body intends to
overthrow long-established principles of law unless such intention is made clearly to
appear either by express declaration or by necessary implication”]; cf. Pieri, supra, 137
Cal.App.4th at pp. 891-892 [rejecting plaintiffs’ statutory interpretation argument where
the Legislature, by recent amendment, eliminated the very statutory language relied upon
by plaintiffs and the case law they cite (without expressly overruling this case law)].)
Finally, following oral argument in this matter, the parties were asked to submit
supplemental letter briefs to address the issue of whether, if an owner uses the Ellis Act
to remove a two-unit residential property from the rental market and thereafter obtains a
11
To the extent Lincoln Place II suggests otherwise, we respectfully disagree with
our colleagues’ decision in this limited regard. (See Lincoln Place II, supra, 155
Cal.App.4th at p. 443.)
22
permit to merge the two units, the displaced tenants would have a right to reoccupy the
newly merged property. (See Gov. Code, § 7060.2, subd. (c) [“A public entity . . . may
require . . . that an owner who offers accommodations again for rent or lease within a
period not exceeding 10 years from the date on which they are withdrawn, and which are
subject to this subdivision, shall first offer the unit to the tenant or lessee displaced from
that unit by the withdrawal. . . .”] [italics added].) This request stemmed from the
City/County’s contention at oral argument that the Ordinance was designed to prevent
landlords from evading certain requirements under the Ellis Act with respect to tenants
displaced by the landlord’s removal of rent-controlled property from the residential rental
market, including offering the tenants the opportunity to re-occupy the property. In its
supplemental brief, the City/County again defends the Ordinance by arguing that, by
“requiring owners who evict tenants under the Ellis Act to wait to merge until the
tenants’ re-occupancy rights have expired, Section 317(e)(4) ensures that if the owner
elects to reenter the residential rental market within 10 years, the evicted tenant will at
least have the opportunity to re-occupy his former residence.”
We reject this argument. The City/County acknowledges that, when two units are
merged, the two original units no longer exist, but have effectively been demolished. As
such, the right to re-occupancy under section 7060.2, subdivision (c) — which applies
only when a particular unit removed from the market is returned to the market within 10
years — is simply not triggered. At the same time, another Ellis Act provision, section
7060.2, subdivision (d), is in fact triggered. This provision provides in relevant part that,
if “the accommodations are demolished, and new accommodations are constructed on the
same property, and offered for rent or lease within five years of the date [of their
withdrawal], the newly constructed accommodations shall be subject to any system of
controls on the price at which they would be offered on the basis of a fair and reasonable
return on the newly constructed accommodations . . . .” (§ 7060.2, subd. (d), italics
added.) As such, we reject the City/County’s suggestion that the Ordinance serves a
legitimate local purpose wholly consistent with the Ellis Act. While the City/County may
be entitled to enact an ordinance imposing restrictions on the rent that may be charged for
23
merged or reconstructed units within five years of removal of the former units from the
rental market, the Ordinance before us exceeds any such restriction. To wit, the
Ordinance also prohibits an owner from removing a property from the rental market and
for 10 years merging the unit with another unit for the purpose of residing in or selling
the merged units – inconsistent, as we have explained, with the Ellis Act. For this reason,
we stand by our conclusion that the Ordinance is fatally inconsistent with the Ellis Act.
III. Did Plaintiffs Successfully Prove the Ordinance Facially Void?
Next, the City/County challenges the trial court’s finding that section 317(e)(4) is
facially void under the Ellis Act with respect to the 10-year prohibition of mergers
following notice of intent to undertake an Ellis Act eviction. According to the
City/County, plaintiffs failed their burden as the party making a facial challenge (as
opposed to an “as applied” challenge) to establish “the challenged [law] ‘inevitably
pose[s] a present total and fatal conflict’ with applicable prohibitions.” (Assn. of
California Ins. Cos. v. Poizner, supra, 180 Cal.App.4th at p. 1054; see also Sanchez v.
City of Modesto (2006) 145 Cal.App.4th 660, 678; accord United States v. Salerno (1987)
481 U.S. 739, 745.) The City/County reasons that the Ordinance applies to all landlords
seeking to merge residential units after undertaking a no-fault eviction, not just those
seeking to merge units after an Ellis Act eviction, such that a challenge limited to
landlords effectuating Ellis Act evictions cannot invalidate the Ordinance in its entirety.
Additionally, the City/County faults plaintiffs for failing to establish all landlords
effectuating Ellis Act evictions would, if permitted, seek approval to merge units within
10 years of serving notice of eviction.12 Under these circumstances, the City/County
insists, there is one or more conceivable set of circumstances under which the Ordinance
and the Ellis Act could operate consistently, rendering a facial challenge inappropriate.
12
As the City/County notes, the Ordinance creates several exemptions from the
mandatory 10-year waiting period, including for landlords who temporarily evict tenants
for the purpose of lead abatement or other capital improvement projects, or who are
seeking to comply with a court-ordered eviction. (E.g., § 317, subd. (e)(3)); § 37.9, subd.
(a)(11), (14).)
24
We reject these arguments. “In considering a facial challenge, we consider ‘only
the text of the measure itself, not its application to the particular circumstances of an
individual.’ (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [40 Cal.Rptr.2d 402,
892 P.2d 1145].) Thus, [as the City/County correctly notes], we invalidate the challenged
ordinance only if it presents a ‘ “ ‘total and fatal conflict’ ” ’ with state law.” (Pieri,
supra, 137 Cal.App.4th at p. 894.) To make this determination, however, we must focus
on the interplay between the relevant state and local law, rather than the local law viewed
in isolation. (See Planned Parenthood v. Casey (1992) 505 U.S. 833, 894 [“legislation is
measured for consistency with the Constitution by its impact on those whose conduct it
affects. . . . The proper focus of the constitutional inquiry is the group for whom the law
is a restriction, not the group for whom the law is irrelevant”].) Having done so in this
case, it is clear that, in every case where a San Francisco property owner exercises his or
her right under the Ellis Act to withdraw a rental unit from the residential rental market in
order to merge the unit with another, the property owner is met head-on with a locally-
imposed legal barrier — to wit, the 10-year prohibition on applying to the planning
commission for merger approval.
Viewed in this light, we agree with the trial court that the legality of section
317(e)(4) does not hinge on the circumstances of any particular individual; rather, its
legality hinges on “only the text of the measure itself.” (See Tobe v. City of Santa Ana,
supra, 9 Cal.4th at p. 1084.) As such, we conclude plaintiffs’ facial challenge to the
Ordinance was appropriate. (See also Travis v. County of Santa Cruz (2004) 33 Cal.4th
757, 767 [a facial challenge to an ordinance is one “predicated on a theory that the mere
enactment of the . . . ordinance worked a [constitutional violation]”].)
DISPOSITION
The judgment is affirmed. Plaintiffs are awarded costs on appeal.
_________________________
Jenkins, J.
25
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
San Francisco Apartment Association et al. v. City And County Of San Francisco, A144702
26
Trial Court: Superior Court, City and County of San
Francisco
Trial Judge: Hon. A. James Robertson II, Judge
Counsel for Appellant: Dennis J. Herrera, City Attorney
City And County Of San Francisco Kristen A. Jensen, Deputy City Attorney
Brian F. Crossman, Deputy City Attorney
Counsel for Respondent: NIELSEN MERKSAMER PARRINELLO
San Francisco Apartment Association et al. GROSS & LEONI
James R. Parrinello
Christopher E. Skinnell
James W. Carson
San Francisco Apartment Association et al. v. City And County Of San Francisco, A144702
27