The opinion
BROWN, J., Concurring.
I concur in the judgment and opinion of the court. I write separately in order to express my understanding on three points the superior court will, upon remand, have to consider in ruling upon the landlord’s motion for summary judgment: (1) The landlord’s filing of a notice of intent to withdraw his property from the rental market, as required by the San Francisco Municipal Code (S.F. Admin. Code, § 37.9A, subd. (f)), creates a nonstatutory rebuttable presumption that the landlord’s intent is *601 bona fide. 1 (2) The tenant will, therefore, bear the burden of producing evidence sufficient to overcome this presumption, i.e., sufficient to establish that the landlord intends to re-rent the property. (3) The landlord’s motive in withdrawing his property from the rental market is irrelevant.
Under the Ellis Act (Gov. Code, § 7060 et seq.), a local government with rent control may require a landlord to provide notice to the local government of the landlord’s intention to withdraw a property from the rental market, and the local government may require that the notice contain statements, made under penalty of perjury, relating to the number and address of the accommodations, the rent charged for the residential units, and the names of the tenants or lessees. (Gov. Code, § 7060.4, subd. (a).) San Francisco has enacted such a notice requirement (S.F. Admin. Code, § 37.9A, subd. (f)), and it is undisputed that the landlord here complied with it.
Under the Ellis Act, a local government with rent control may also provide significant disincentives for re-renting a property once a notice of withdrawal has been filed. Subject to certain conditions, including the length of time that has passed since the notice of withdrawal was filed, the disincentives include: permitting the displaced tenants to rent the property again for no more than the rent in effect at the time of withdrawal, plus allowable annual increases; permitting the displaced tenants to sue the landlord for actual and exemplary damages; and permitting the local government to sue the landlord for exemplary damages. (Gov. Code, § 7060.2, subds. (a)(1), (b).) San Francisco has enacted these disincentives for re-renting withdrawn properties. (S.F. Admin. Code, § 37.9A, subds. (a), (c), (d).)
Because San Francisco’s disincentives for re-renting withdrawn properties are so significant, a landlord who, like the landlord here, has given notice of his intent to withdraw his property from the rental market is entitled to a presumption that he has a bona fide intent to do so. He should not, in the absence of any contrary evidence, be saddled with proving a negative, i.e., that he does not intend to re-rent the property in the future.
To overcome the presumption that the landlord has a bona fide intent to withdraw his property from the rental market, the tenant will have to produce *602 admissible evidence, evidence sufficient to justify a judgment for the tenant, that the landlord intends to re-rent the property. (Cf. Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 254-255 [ 67 L.Ed.2d 207 , 101 S.Ct. 1089 ] [once a prima facie showing of discrimination has been made, the burden shifts to the defendant to rebut the presumption by producing admissible evidence, sufficient to justify a judgment for the defendant, that its action was taken for a legitimate, nondiscriminatory reason].)
Finally, the landlord’s motive in withdrawing his property from the rental market is, as the majority opinion points out, irrelevant. (Maj. opn., ante, at pp. 595-596.)
Baxter, J., concurred.
The power of California appellate courts to create presumptions is expressly recognized by the Evidence Code. (In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1019 [ 13 Cal.Rptr.2d 139 ]; 1 Witkin, Cal. Evid. (4th ed. 2000) Burden of Proof and Presumptions, § 103, p. 235.) That the Evidence Code recognizes the power of appellate courts to create presumptions becomes clear when sections 600 and 160 are read together. Evidence Code section 600 provides that a presumption is an assumption of fact “the law requires” to be made from another fact or group of facts established in the action, and Evidence Code section 160 provides that “law” includes “decisional law.”