Opposition Brief — Vicars v. Superior Court of California

me eS Se can aaa

‘Supreme Court of the United States

October Term, 1985

JON A. VICARS,

Petitioner,

v.

THE SUPERIOR COURT

OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ALAMEDA,

Respondent.

—

Ww

RESPONSE TO PETITION FOR WRIT

OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF CALIFORNIA

‘=

“!

SAMUEL E. TROSOW

Counsel of Record

2161 Shattuck Averue

Suite 303

Berkeley, California 94704

Telephone: (415) 841-5500

Attorney for Real Parties

in Interest

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

TABLE OF CASES

INTRODUCTION

TABLE OF CONTENTS

REASONS FOR DENYING CERTIORARI:

I. THIS CASE PRESENTS NO CONSTITU-

IL.

It.

TIONAL ISSUE INVOLVING THE RIGHT TO

WITHDRAW FROM AN OCCUPATION. _.

THE REGULATIONS IMPOSED BY THE

SUBJECT ORDINANCE DO NOT CONSTI-

TUTE AN IMPERMISSIBLE TAKING OF

PETITIONER’S PROPERTY.

A. The Regulations in Question do not Create

such a Permanent Physical Invasion of Peti-

tioner’s Property to Constitute a Per Se Tak-

ing.

B. Even if the Ordinance Creates such a Per-

manent Physical Invasion of Petitioner’s

Property so as to Constitute a Per Se Taking,

the Appropriate Remedy Would be a Deter-

mination of the Proper Level of Compensa-

tion which should be Paid. The Ordinance

Provides a Mechanism for Guaranteeing such

Just Compensation, but Petitioner has Failed

to Avail Himself of such Remedies.

THE PETITIONER HAS FAILED TO EX-

HAUST ADMINISTRATIVE REMEDIES

WHICH ARE AVAILABLE TO HIM UNDER

THE ORDINANCE.

THE LEGISLATIVE ENACTMENT OF CAL-

IFORNIA GOVERNMENT CODE SECTIONS

7060, ET SEQ., RENDERS THIS PETITION

MOOT.

il

TABLE OF CONTENTS—Continued

Pages

V. AN ACTION IN UNLAWFUL DETAINER IS

NOT THE APPROPRIATE FORUM FOR

CHALLENGING THE VALIDITY OF A MU-

NICIPAL REGULATORY SCHEME. 8

VI. ABSTENTION IS APPROPRIATE IN THIS

CASE BECAUSE OF THE PENDENCY OF :

AN ACTION AGAINST THE CITY OF BERK-

ELEY IN STATE COURT BY THE PRETI-

TIONER BASED UPON THE SAME ISSUE |

AS RAISED HEREIN. 9

CONCLUSION : 11

ili

TABLE OF CASES

Pages

Fresh Pond Shopping Center, Inc. v. Callahan,

— US. —, 104 S. Ct. 218 (1983) 2

Gonzales v. Gem Properties, 37 Cal. App. 3d 1029

(1974) 8

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) 11

Judice v. Vail, 430 U.S. 327 (1977) 11

Knowles v. Robinson, 60 Cal. 2d 620 (1963) 0. ae

Lindsey v. Normet, 405 U.S. 56 (1972) 9

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) 4,5,6

Middlesex County Ethics Committee v. Garden

Stat: “ar Association, 457 U.S. 423 (1982) ow. 11

Mobil (7w Corp. v. Handley, 76 Cal. App. 3d 956

(1978) 8

Nash v. City of Santa Monica, 37 Cal. 3d 97, ap-

peal dis. No. 84-1168 (1984) ... ‘ 2, 3,5

Samuels v. Mackell, 401 U.S. 66 (1971) 2. 10

Trainor v. Hernandez, 431 U.S. 4384 (1977) 2 ....... 1]

Williamson County Regional Planning Commis-

ston v. Hamilton Bank of Johnson City, —- US.

—, 105 S. Ct. 3108 (1985) ..

Younger v. Harris, 401 U.S. 37 (1971) 10

INTRODUCTION

This case pits the policies of the City of Berkeley

which regulate rents and rental! practices against an in-

dividual’s aversion to such regulation based upon his eco-

nomic and political interests.

Petitioner seeks to test the validity of the ‘‘Good

Cause for Eviction’’ procedures of the Berkeley Rent

Stabilization and Eviction for Good Cause Ordinance, N.S.-

5261 (hereafter referred to as the Ordinance) by means of

a writ of certiorari for review of a dismissal of his state

court unlawful detainer action.

Real Parties in Interest, the defendants in the under-

lying unlawful detainer action, herein advance a variety

of reasons why the instant petition should be denied. At

the outset, real parties note the sparse record which ac-

companies the petition.

The case comes before this Court on the pleadings be-

cause petitioner has chosen to present his claim through

the vehicle of an unlawfu! detainer action rather than

through his pending state court action against the City of

Berkeley. Thus, there is nothing in the record which dem-

onstrates that petitioner is unable to enjoy a fair rate of

return on his investment. There is nothing in the record

to show that the petitioner is unable to delegate to others

those landlordly tasks which he finds so personally repug-

nant. There is nothing in the record to indicate how the

ordinance operates against this petitioner in a particu-

larly draconian manner. The record merely demonstrates

that petitioner came to own a building inhabited by tenants

who had the right to possession of their units pursuant to

rental agreements with either the petitioner or his prede-

l

cessor. Eviction controls were in effect at the time of the

‘ petitioner’s commencement of ownership, and the attached

complaint indicates that after he acquired ownership, the

netitioner continued to let units as they became vacant.

The petition presents more in the way of a polemic

against rent control than a serious discussion of any fed-

eral constitutional issue. The petition fails to distinguish

the case at bar from recent cases raising similar is-

sues. In both Nash v. City of Santa Monica, 37 Cal. 3d

97 (1984) (appeal dis. 84-1168), and Fresh Pond Shopping

Center, Inc. v. Callahan, 104 8. Ct. 218 (1983), this Court

dismissed appeals for want of a substantial federal ques-

tion.

Moreover, review in this case should be denied on

grounds not reaching the merits of petitioner’s constitu-

tional contentions. First, petitioner fails to demonstrate

exhaustion of his administrative remedies, rendering this

controversy unjusticiable due to lack of ripeness, (Section

IIT)

Second, petitioner’s claims regarding his right to evict

his tenants and go out of business are rendered wholly

moot by the passage of recent California legislation which

will give him this right before this case could reasonably

be decided should review be granted. (Section IV)

Third, the procedural posture under which this peti-

tion arises provides ample grounds for denial. The under

lying state court action was brought against the tenants of

the property in unlawful detainer, a special summary stat-

utory procedure. It is well established that such actions

are strictly limited in nature, Adequate state grounds for

3

the decisions reached below exist on the simple procedural

point that the litigation of the constitutional validity of

the subject regulations is beyond the scope of the Cali-

fornia unlawful detainer statute. (Section V)

Fourth, the pendency of a state court action against

the City of Berkeley on the same claim provides grounds

for federal court abstention based upon considerations of

comity and the principle of exhaustion of adequate and

available state court remedies at law. (Section VI)

}

REASONS FOR DENYING CERTIORARI

I, THIS CASE PRESENTS NO CONSTITUTION.

AL ISSUE INVOLVING THE RIGHT TO

WITHDRAW FROM AN OCCUPATION.

Petitioner Vicars has put forth the proposition that

the Ordinance has abridged his constitutionally protected

right to withdraw his personal time, abilities and energies

from the occupation of providing rental housing.

The Ordinance, however, lacks any element of coercion

which forces Vicars to personally remain in business

against his will. He is free to delegate his responsibilities

to a manager, withhold units as they become vacant, or sell

the property and invest the proceeds elsewhere.

These are the reasonable alternatives available to the

owner discussed by the California Supreme Court in Nash

v. City of Santa Monica, 37 Cal. 3d 97 (1984), (appeal dis.

No, 84-1168).

Vicars does not wish to utilize any of these alterna-

tives. Instead, he wishes to withdraw his units immedi-

ately because he objects to the requirements of the Ordi-

nance for economic and political reasons. (Pet. for Cert.,

p. 9) In order to accomplish this purpose, petitioner at-

tempted to remove all of the tenants simultaneously. Con-

sequently, he found the ensuing unlawful detainer actions

to be unenforceable as they were in violation of the evic-

tion protection provisions of the ordinance.

While petitioner may find the local reguiations dis-

tasteful, his personal and economic reasons for disliking

rent control do not give rise to any more of a federal con-

stitutional claim than the similar contentions which were

advanced and rejected in Nash, supra,

II. THE REGULATIONS IMPOSED BY THE SUB.

JECT ORDINANCE DO NOT CONSTITUTE

AN IMPERMISSIBLE TAKING OF PETITION.

ER'’S PROPERTY.

Petitioner contends that the Ordinance mandates such

a permanent physical invasion of his property that a tak-

ing has occurred without regard to the public interests

which the regulations serve. Such a per se taking was

found in Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982). Petitioner submits that Loretto is

controlling here.

Rea! Parties, on the other hand, assert that any claim

of a taking must be determined on its own merits based

upon the societal importance of the interest being pro-

tected by the regulation and whether the ordinance bears

a reasonable relationship to such a purpose. Such an ap-

2 ees

5

proach was used in Nash, supra, and is the appropriate

standard absent a clear indication on the record of a per-

manent physical invasion of the petitioner’s property.

A. The Regulations in Question do not Create

such a Permanent Physical Invasion of Peti-

tioner’s Property to Constitute a Per Se Tak-

ing.

The record in the present case does not demonstrate

the requisite permanent physical invasion of the petition-

er’s property so as to trigger the Loretto standard for a

taking per se. Each of the tenants contracted either with

the petitioner or the petitioner’s predecessor and there-

upon entered into rental agreements for the use and occu-

pancy of their respective units. This is not a ‘‘physical

invasion’’ within the meaning of Loretto, Nor is the ten-

ants’ occupancy permanent. The good cause for eviction

section of the ordinance specifies ten different causes for

eviction. It should also be noted that petitioner was pre-

sumptively aware of the subject regulations at the time of

his purchase of the building in 1982 as they had been in

foree for two years. As a result, petitioner cannot show,

nor has he even alleged, any imterference with the ‘‘invest-

ment-backed expectations’? which was noted as particu-

larly significant in Loretto. Id., at 418.

In fact, petitioner obtained exactly what he bargained

for when he purchased the building: a ten unit property

filled with tenants who were protected by the provisions

of the eviction fer good cause ordinance. The right to

possession of the individual units had been, in every case,

volitionally «lienated by the owner of the property. No

damage or wnition of the reversionary interest has been

demonstrated on the record. As spch, the per se taking

rule is not appropriately invoked_in this ease.

B. Even if the Ordinance Creates such a Per-

manent Physical Invasion of Petitioner’s

Property so as to Constitute a Per Se Taking,

the Appropriate Remedy would be a Deter-

mination of the Proper Level of Compensa-

tion which should be Paid. The Ordinance

Provides a Mechanism for Guaranteeing such

Just Compensation, but Petitioner has Failed

to Avail Himself of such Remedies.

The result of the holding in Loretto was aot the re-

moval of the cable facilities, but a remand to the state

court so the proper level of compensation could be deter-

mined. By analogy, even if petitioner is suffering a per-

manent physica! invasion which constitutes a taking per se,

this would not necessarily invalidate the regulation so long

as Just compensation was received. The ordinance in ques-

tion guarantees the owner a fair return on his investment.

If the owner feels that he is not being adequately compen-

sated, ad ninistrative remedies are available to ensure an

appropriate rent increase. But this petitioner does not

demonstrate that such recourse was — prior to seek-

ing judicial relief,

III. THE PETITIONER HAS FAILED TO EX-

HAUST ADMINISTRATIVE REMEDIES

WHICH ARE AVAILABLE TO HIM UNDER

THE ORDINANCE.

Petitioner submits that Section 13 of the Ordinance

constitutes a taking of his property in violation of the

Fifth and Fourteenth Amendments. (Pet. for Cert., pp.

13-16) He also urges the court to find that his right to

withdraw from the ‘‘occupation’’ of providing rental hous-

ing has been violated because the court below precluded

him from showing that ‘‘the meager income allowed by the

regulated rentals did not provide for hiring others in or-

der to minimize his personal involvement.’’ (Pet. for Cert.,

p. 12)

However, the same ordinance which petitioner seeks

to challenge through this action provides a speedy admin-

istrative remedy to insure that the owner receives a fair

return on investment.

The record in this case fails to disclose whether

Vicars attempted to obtain a rent increase from the Rent

Stabilization Board to compensate for any permanent

physical invasion he was forced to suffer as a result of

the ordinance. Nor does Vicars assert that he attempted

to seek an adjustment for any other increase in mainten-

ance or operating expenses necessary to maintain a fair

rate of return.

As a result, this claim is not ripe under the authority

of Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City, — U.S. —, 105 S. Ct. 3108

(1985). In that case, this Court held a taking claim pre-

mature because the respondent failed to seek relief through

available administrative remedies. Vicars’ failure to peti-

tion the Rent Stabilization Board for appropriate relief

in the form of a petition for a rent increase is analogous

to Hamilton Bank’s failure to seek a variance before claim-

ing that its property was taken without just compensa-

tion.

8

IV. THE LEGISLATIVE ENACTMENT OF CALI-

FORNIA GOVERNMENT CODE SECTIONS

7060, ET SEQ. RENDERS THIS PETITION

MOOT. ,

The California Legislature has recently enacted a bill

which gives landlords the right to withdraw their prop-

erty from the rental housing market. (Stats. 1985, ¢. 1509,

SB 505) This law is effective on July 1, 1986 and permits

landlords to evict their tenants if they wish to go out of

business notwithstanding local regulation.

In light of the foregoing, there is clearly no substan-

tial federal question as the claim of petitioner is moot.

Accordingly, review should be denied.

V. AN ACTION IN UNLAWFUL DETAINER IS

NOT THE APPROPRIATE FORUM FOR

CHALLENGING THE VALIDITY OF A MU-

NICIPAL REGULATORY SCHEME.

Petitioner has chosen an action in unlawful detainer

as one of his procedural vehicles for challenging the

Berkeley Ordinance. Unlawful detainer is a special statu-

tory procedure, (California Code of Civil Procedure, Sec-

tions 1159, et seq.), within which the litigable issues are

strictly limited. Anowles v. Robinson (1963) 60 Cal. 2d

620; Gonzales v. Gem Properties, Inc. (1974) 37 Cal. App.

3d 1029; Mobil Oil Corp. v. Handley (1978) 76 Cal. App.

3d 956. The procedural rights of an unlawful detainer de-

fendant are extremely limited. The time to respond to

service or process is five days instead of thirty, the action

is entitled to preference in trial setting, and stay of execu-

tion pending appeal is not granted as a matter of right.

This court has held that neither the limitation on litigable

issues nor early trial provisions are violative of due prec-

ess or equal protection. Lindsey v. Normet, 405 U.S. 56

(1972).

Real Parties submit that the validity of a. important

municipal regulatory scheme cannot be properly ‘litigated

in such a summary procedure in a Municipal Court. Peti-

tioner should properly bring an action in the nature of

declaratory relief in Superior Court.

Nevertheless, petitioner asserts that review is appropri-

ate because he ‘‘... was denied the opportunity to amend his

pleading to plead the economic hardship imposed on him.

(Pet. for Cert., p. 8) In his Application for Certification

to the Court of Appeal (Pet. for Cert., Appendix F), peti-

tioner argues that the subject ruling acted to deny him the

right to trial on issues such as the saleability of the prop-

erty, sufficiency of income to hire a management company

and the rational relationship standard, (Appendix F-2)

These issues are clearly beyond the scope of the summary

unlawful detainer proceeding.

In accordance with the statutory scheme enacted in

the State of California concerning unlawful detainer pro-

ceedings, further review should be denied.

VI. ABSTENTION IS APPROPRIATE IN THIS

CASE BECAUSE OF THE PENDENCY OF AN

ACTION AGAINST THE CITY OF BERKELEY

IN STATE COURT BY THE PETITIONER

BASED UPON THE SAME ISSUE AS RAISED

HEREIN.

Currently pending in California state court is the ac-

tion Vicars v. City of Berkeley (Alameda County Superior

Court No. 582948-6), wherein the instant petitioner is seek-

ing damages, injunctive and declaratory relief against the

—

10

City. The action is based on the grounds that the City is

preventing him from exercising his constitutional right to

go out of business.

This action raises the very issues which petitioner

claims were improperly excluded from consideration in the

underlying unlawful detainer action. (A copy of the com-

plaint in that action is attached to the brief of Amicus City

of Berkeley as Appendix A.) Real Parties concur with the

City’s contention that any ruling by this Court in the case

at bar will have a substantial impact on the result of that

state court action,

The pendency of the state court action provides fur-

ther reason why the instant petition should be denied. Peti-

tioner has an adequate remedy at law directly against the

City of Berkeley for any damages he might suffer as a re-

sult of his inability to evict the tenants.

Moreover, abstention is proper in this case based upon

developing standards of justiciability. In Younger v. Har-

ris, 401 U.S. 37 (1971), this Court enumerated the prin-

ciple that federal courts should abstain when a state crim-

inal prosecution is peuding. Several reasons were stated

for such abstention including the notion of comity, and the

existence of adequate remedies at law in the state proceed-

ing. This Court also considered that a request for an in-

junction against the enforcement of a challenged statute is

likely to require the court to engage in a ‘‘speculative and

amorphous”’ line by line analysis of the statute, rather than

deciding a concrete controversy.

This concept was applied to an action in declaratory

relief challenging the constitutionality of a state criminal!

statute in Samuels v. Mackell, 401 U.S. 66 (1971), and to

11

state civil proceedings where a public entity is a party and

important state interests are involved. Huffman v. Pursue

Lt¢., 420 U.S. 592 (1975); Judice v. Vail, 430 U.S. 327

(1977); Trainor v. Hernandez, 431 U.S. 434 (1977) ; Middle-

sex County Ethics Comm. v. Garden State Bar Assn., 457

U.S. 423 (1982).

While petitioner is not technically seeking injunctive

or declaratory relief, the effect of granting review herein

will nave, as a practical matter, the same effect.

Particularly in light of the sparse record accompany-

ing this petition, review should be denied based upon the

foregoing principles.

°

CONCLUSION

For any and each of the above reasons, the Real Par-

ties in Interest submit that Certiorari should be denied.

DATED: January 17, 1986

Respectfully submitted,

By /s/ Samve. E. Trosow

Attorney for Real Parties in Interest