Arche v. Scallon ( 2022 )


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  • Filed 8/1/22
    CERTIFIED FOR PUBLICATION
    APPELLATE DIVISION OF THE SUPERIOR COURT
    STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
    DANIEL ARCHE et al.                                 )   BV 033632
    )
    Plaintiffs and Appellants,                )   Long Beach Trial Court
    )
    v.                                  )   No. 21LBUD00480
    )
    JAMES SCALLON,                                      )
    )
    Defendant and Respondent.                 )   OPINION
    )
    )
    APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim,
    Judge. Affirmed.
    Layne L. Liddle, George Lee Liddle, Jr., and Raymond Zakari, Law Offices of Liddle
    and Liddle, for Plaintiffs and Appellants Daniel Arche and Lori Arche.
    No appearance for Defendant and Respondent James Scallon.
    *         *             *
    1
    Plaintiffs and appellants Daniel Arche and Lori Arche brought an unlawful detainer
    action against defendant and respondent James Scallon, and the trial court sustained
    defendant’s demurrer without leave to amend and entered judgment against plaintiffs.
    Plaintiffs appeal, contending the court erred in determining the Los Angeles County COVID-19
    Eviction Moratorium (L.A. County Ord., as adopted Feb. 23, 2021, § I, et seq. (LACEM)) was
    not preempted by state law. As discussed below, we affirm.
    BACKGROUND
    The unlawful detainer complaint was filed on July 14, 2021, alleging defendant entered
    into a one-year lease concerning residential property located in Long Beach, California in
    October 2019, and continued residing at the location under a month-to-month tenancy paying
    $7,000 monthly rent. Plaintiffs purchased the property in January 2021, and on April 27, 2021,
    served defendant with a 60-day notice to quit possession. Defendant remained on the property,
    and plaintiffs in their action requested restitution and possession of the premises, termination of
    the rental agreement, holdover damages, and reasonable attorney’s fees under the agreement.
    The attached 60-day eviction notice stated, “You are being served with this notice because the
    owner intends to occupy the premises as their primary residence.”
    Defendant demurred to the complaint, arguing the LACEM provided that a tenant’s
    eviction was barred unless the eviction was due to a specified just cause reason (LACEM
    § V.A.2), and none was stated in the complaint. Defendant further maintained the guidelines
    issued by the Los Angeles County Director of the Department of Consumer and Business
    Affairs (Director) with regard to the applicability of the LACEM provided that a notice of
    termination of a tenancy which fell within the scope of the moratorium was “null and void”
    (L.A. County Ord. adopted Feb. 23, 2021 Guidelines, No. 5.4.A (Guidelines)), and thus leave to
    amend should not be granted. Plaintiffs filed an opposition, arguing the LACEM was
    preempted by the COVID-19 Tenant Relief Act (TRA) (Code Civ. Proc., § 1179.05), and that
    the TRA permitted the action to proceed as a no-fault just cause eviction based on “[i]ntent to
    occupy the residential real property by the owner” (Code Civ. Proc., § 1179.03.5, subd.
    (a)(3)(A)(ii)(I); Civ. Code, § 1946.2, subd. (b)(2)(A)(i)). In his reply, defendant argued TRA
    2
    preemption only applied to any city or county ordinance enacted “in response to the COVID-19
    pandemic to protect tenants from eviction based on nonpayment of rental payments” (quoting
    the Legislative Counsel’s Digest to the bill that enacted the TRA, Assem. Bill. No. 3088 (2019-
    2020 reg. sess.), and the eviction here did not fall within this category.
    At the hearing on the demurrer held on September 10, 2021, the court referenced a
    tentative ruling it provided to the parties wherein it found the LACEM was not preempted and
    setting forth the court’s reasoning.1 Plaintiffs’ attorney argued the LACEM was preempted by
    the TRA with regard to all evictions, not just ones based on failure to pay rent. The court stated
    that, consistent with its tentative ruling, it found the moratorium on no-fault just cause
    termination of tenancies was not preempted by state law, and that given the Guidelines
    providing an eviction notice not in compliance with the LACEM was “null and void,” it
    sustained defendant’s demurrer without leave to amend the complaint.
    On September 16, 2021, the court signed an order and judgment of dismissal. Plaintiffs
    filed a timely notice of appeal of the judgment on October 12, 2021.
    DISCUSSION
    Standard of Review and Principles of Preemption
    The propriety of a court’s order sustaining a demurrer without leave to amend is
    reviewable on appeal from an ensuing judgment or order of dismissal. (Kong v. City of
    Hawaiian Gardens Redevelop. Agency (2002) 
    108 Cal.App.4th 1028
    , 1032, fn. 1.) On appeal,
    “‘the complaint is reviewed de novo to determine whether it contains sufficient facts to state a
    cause of action. [Citation.] In doing so, we accept as true the properly pleaded material factual
    allegations of the complaint . . . . [Citations.]’” (Beckwith v. Dahl (2012) 
    205 Cal.App.4th 1039
    , 1049.) De novo review is also appropriate because the issue at hand pertains to statutory
    interpretation and preemption, and there are no facts in dispute regarding the issues presented
    on appeal. (Ceja v. Rudolph & Sletten, Inc. (2013) 
    56 Cal.4th 1113
    , 1119 [questions
    concerning statutory construction are reviewed de novo]; Roble Vista Associates v. Bacon
    1
    The tentative ruling is not part of the record on appeal.
    3
    (2002) 
    97 Cal.App.4th 335
    , 339 [“Whether state law preempts a local ordinance is a question of
    law that is subject to de novo review”].)
    “‘Under article XI, section 7 of the California Constitution, “[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 [state] laws.” [¶] “If otherwise valid local legislation
    conflicts with state law, it is preempted by such law and is void.” [Citations.] [¶] “A conflict
    exists if the local legislation ‘“duplicates, contradicts, or enters an area fully occupied by
    general law, either expressly or by legislative implication. [Citations.]”’”’ [Citations.]”
    (O’Connell v. City of Stockton (2007) 
    41 Cal.4th 1061
    , 1067.)
    “There is generally a ‘strong presumption that legislative enactments “must be upheld
    unless their unconstitutionality clearly, positively, and unmistakably appears.”’ [Citations.]”
    (Rental Housing Assn. of Northern Alameda County v. City of Oakland (2009) 
    171 Cal.App.4th 741
    , 752.) Hence, “courts should, if reasonably possible, construe a statute ‘in a manner that
    avoids any doubt about its [constitutional] validity. [Citations.]’ [Citations.]” (Kleffman v.
    Vonage Holdings Corp. (2010) 
    49 Cal.4th 334
    , 346.) “‘[P]reemption by implication of
    legislative intent may not be found when the Legislature has expressed its intent to permit local
    regulations. Similarly, it should not be found when the statutory scheme recognizes local
    regulations.’ [Citation.]” (Big Creek Lumber Co. v. County of Santa Cruz (2006) 
    38 Cal.4th 1139
    , 1157.)
    The LACEM Was Not Preempted
    The LACEM includes eviction protections not contained in the TRA.2 As pertinent
    here, section V.A.2 of the LACEM states, “No-Fault Termination of Tenancy or Occupancy.
    A Tenant shall not be evicted where grounds for terminating the tenancy or occupancy [are] not
    based on any alleged fault by the Tenant, including, but not limited to, those stated in Code of
    2
    The original version of the LACEM was adopted March 4, 2020. On September 28, 2021, the
    name of the LACEM was changed to “the County of Los Angeles COVID-19 Tenant Protections
    Resolution.” We focus chiefly on the February 23, 2021 version, because the eviction notice was
    served April 27, 2021, and continue to reference the LACEM, because the name change occurred after
    judgment was entered.
    4
    Civil Procedure section 1161 et seq., and Chapters 8.52 and 8.57 of the County Code. [3]
    No-Fault termination of tenancy or occupancy also includes the intent to demolish or to
    substantially remodel the real property.” (Underlining and capitalization in original.) The
    Guidelines provide, “Any notice of termination served to a Tenant subject to the Moratorium
    on or after March 4, 2020, and during the Moratorium is rendered null and void.” (Guidelines,
    No. 5.4.A.)4
    In contrast, the TRA allows evictions based on no-fault just cause reasons. Code of
    Civil Procedure section 1179.03.5, subdivision (a), states, “Before October 1, 2021, a court may
    not find a tenant guilty of an unlawful detainer unless it finds that one of the following applies,”
    and proceeds to list, inter alia, “(3)(A) The unlawful detainer arises because of a termination of
    tenancy for any of the following: [⁋] [⁋] (ii) (I) A no-fault just cause . . . .” (Code Civ. Proc.,
    § 1179.03.5, subd. (a)(3)(A)(ii)(I).)
    Plaintiffs contend the version of the TRA in effect at the time the 60-day notice was
    served in April 2021 preempted the LACEM by stating, “(a) Any ordinance, resolution,
    regulation, or administrative action adopted by a city, county, or city and county in response to
    the COVID-19 pandemic to protect tenants from eviction is subject to all of the following:
    [⁋] (1) Any extension, expansion, renewal, reenactment, or new adoption of a measure,
    however delineated, that occurs between August 19, 2020, and June 30, 2021, shall have no
    effect before July 1, 2021.” (Code Civ. Proc., § 1179.05, subd. (a)(1).)5 Plaintiffs argue this
    3
    The Code of Civil Procedure permits evictions for no-fault reasons, including following service
    of notice after the expiration of a lease term (Code Civ. Proc., § 1161, subd. (a)), and the Los Angeles
    County Rent Stabilization and Tenant Protections Ordinance also allows evictions based on no-fault
    reasons (L.A. County Code, § 8.52.090).
    4
    The LACEM, § XIII, in a provision titled, “Guidelines and Board Delegations,” stated,
    “The Director . . . or his designee, shall issue guidelines to aid in the implementation of the
    Moratorium . . . .” Plaintiffs do not maintain on appeal that the Board improperly delegated authority
    for the Guidelines to be promulgated, or that the Guidelines are otherwise invalid as binding law.
    (Defendant did not file an appellate brief.)
    5
    The TRA was subsequently amended twice to change the applicable dates in Code of Civil
    Procedure section 1179.05, subdivision (a)(1), so that “Any extension, expansion, renewal,
    reenactment, or new adoption of a measure, however delineated, that occurs between August 19, 2020,
    and June 30, 2022, shall have no effect before July 1, 2022.” (Stats. 2022, ch. 13, § 2 [enacted effective
    March 31, 2022].)
    5
    portion of the TRA indicates the Legislature intended to expressly occupy the field concerning
    COVID-19 legislation.
    The LACEM, as promulgated on February 23, 2021, was a resolution of the Los Angeles
    County Board of Supervisors (Board) enacted between August 19, 2020, and June 30, 2021, as
    an effort to protect tenants in response to the COVID-19 pandemic. However, subdivision (b)
    of Code of Civil Procedure section 1179.05, as it read when the 60-day notice was served,
    provided, “This section does not alter a city, county, or city and county’s authority to extend,
    expand, renew, reenact, or newly adopt an ordinance that requires just cause for termination of
    a residential tenancy or amend existing ordinances that require just cause for termination of a
    residential tenancy, consistent with subdivision (g) of [Civil Code] [s]ection 1946.2, provided
    that a provision enacted or amended after August 19, 2020, shall not apply to rental payments
    that came due between March 1, 2020, and June 30, 2021.”
    In construing a statute, our duty is to first examine the language used, as it is the clearest
    indication of the Legislature’s intent. (See City of Montebello v. Vasquez (2016) 
    1 Cal.5th 409
    ,
    419.) Here, under Code of Civil Procedure section 1179.05, subdivision (b), with the exception
    of local ordinances pertaining to rental payments, ordinances that require just cause for
    termination of residential tenancies are specifically excluded from the Code of Civil Procedure
    section 1179.05, subdivision (a), provision indicating local ordinances having no effect before
    July 1, 2021.
    Plaintiffs argue the reference to “an ordinance that requires just cause for termination of
    a residential tenancy or amend existing ordinances that require just cause for termination of a
    residential tenancy” in Code of Civil Procedure section 1179.05, subdivision (b), was meant to
    only reference local rent control laws, such as Los Angeles County Code chapter 8.52. But,
    such an intent is wholly absent from the language used in the statute, and “‘“insert[ing]”
    additional language into a statute “violate[s] the cardinal rule of statutory construction that
    6
    courts must not add provisions to statutes.”’ [Citations.]” (Coble v. Ventura County Health
    Care Agency (2021) 
    73 Cal.App.5th 417
    , 427.)
    The Legislature indicated local laws addressing the pandemic were contemplated to fall
    within Code of Civil Procedure section 1179.05, subdivision (b), by stating in Code of Civil
    Procedure section 1179.05, subdivision (f), “It is the intent of the Legislature that the purpose
    of this section is to protect individuals negatively impacted by the COVID-19 pandemic, and
    that this section does not provide the Legislature’s understanding of the legal validity on any
    specific ordinance, resolution, regulation, or administrative action adopted by a city, county, or
    city and county in response to the COVID-19 pandemic to protect tenants from eviction.” To
    the extent there is ambiguity as to which ordinances were referenced in the statute, the
    Legislative Counsel’s Digest to Assembly Bill No. 3088 points to an intent that only rental
    payment ordinances enacted to address the COVID-19 pandemic were preempted by the TRA,
    providing “The Tenant Act would preempt an ordinance, resolution, regulation, or
    administrative action adopted by a city, county, or city and county in response to the COVID-
    19 pandemic to protect tenants from eviction based on nonpayment of rental payments, as
    specified.” (Legis. Counsel’s Dig., Assem. Bill No. 3088 (2019-2020 Reg. Sess.) Stats. 2020,
    ch. 37, italics added; see 926 North Ardmore Avenue, LLC v. County of Los Angeles (2017) 
    3 Cal.5th 319
    , 328 [“If the statutory language is not clear, a court may resort to extrinsic sources,
    like legislative history”]; see also People v. Superior Court (Lavi) (1993) 
    4 Cal.4th 1164
    , 1178
    [Legislative Counsel’s Digest is indicative of legislative intent].)
    TRA Requirement that an Ordinance be Consistent with Civil Code Section 1962
    Plaintiff further argues that, even if the TRA allowed some COVID-19 ordinances to
    operate when they were in conflict with the TRA, the LACEM was nonetheless invalid,
    because it did not comply with the requirement that the ordinance be “consistent with
    subdivision (g) of [Civil Code] Section 1946.2.” (Code Civ. Proc., § 1179.05, subd. (b).) We
    reject the argument.
    Civil Code section 1946.2, subdivision (g)(1)(B), states that the no-fault, just cause
    provisions in the statute do not apply with regard to “[r]esidential real property subject to a
    7
    local ordinance requiring just cause for termination of a residential tenancy adopted or amended
    after September 1, 2019, that is more protective than this section, in which case the local
    ordinance shall apply. For purposes of this subparagraph, an ordinance is ‘more protective’ if it
    meets all of the following criteria: [⁋] (i) The just cause for termination of a residential tenancy
    under the local ordinance is consistent with this section. [⁋] (ii) The ordinance further limits the
    reasons for termination of a residential tenancy, provides for higher relocation assistance
    amounts, or provides additional tenant protections that are not prohibited by any other provision
    of law. [⁋] (iii) The local government has made a binding finding within their local ordinance
    that the ordinance is more protective than the provisions of this section.”
    Plaintiffs argue the LACEM failed to qualify under Civil Code section 1946.2,
    subdivision (g)(1)(B)(iii), because “[t]he language of [the LACEM] does not include any
    ‘binding findings’ that it is ‘more protective’ than [s]tate law.” Plaintiffs appear to maintain
    that an express finding is required by a local entity in order to comply with Civil Code section
    1946.2, subdivision (g)(1)(B)(iii). However, they cite no authority that such a finding cannot
    be implied from an entity’s enactment, and such a finding is readily apparent in the LACEM.
    When the Board, on February 23, 2021, issued the resolution codifying the LACEM, it
    acknowledged the legislative attention given to tenant relief, and noted that several “tenant
    protections” (pertaining to evictions due to failure to pay rent caused by the COVID-19
    emergency) “have been removed due to preemption.” (LACEM, p. 5.) The LACEM stated,
    “the Board desires to extend the Moratorium and its tenant protections, where not preempted,
    through June 30, 2021 . . . . (LACEM, p. 6). The Board then proceeded to “PROCLAIM,
    RESOLVE, DETERMINE AND ORDER” (capitalization in original), and set forth provisions
    that included in section V.A.2 that “A Tenant shall not be evicted where grounds for
    terminating the tenancy or occupancy [are] not based on any alleged fault by the Tenant,
    including, but not limited to, those stated in Code of Civil Procedure section 1161 et seq.”
    Although not specifically referencing Civil Code section 1946.2 as allowing no-fault just cause
    evictions to proceed, the ordinance’s indication that no-fault evictions were barred even when
    allowed by state law, in combination with the Board’s intent to enact “tenant protections” to the
    8
    extent they were not preempted by state law, was sufficient to comply with Civil Code section
    1946.2, subdivision (g)(1)(B)(iii).
    In addition, on November 16, 2021, the Board made an express finding that the LACEM
    has always been more protective of tenants. The Board indicated,
    The COVID-19 Tenant Protections have been extended multiple times by the
    Board and are currently set to expire on January 31, 2022. Since March of 2020,
    this Board’s intent has been to protect the health, safety, and welfare of its
    constituents during the COVID-19 pandemic by, among other things, providing
    protections that are more restrictive, or provide greater tenant protections than State
    law in areas relating to rent increases, evictions, relocation assistance for displaced
    tenants, protections against harassment and discrimination of tenants and
    residential applicants, and other tenant protections. This Board wishes to clarify
    and reaffirm such intent in the County’s COVID-19 Tenant Protections, in part to
    address an argument recently made in a Superior Court proceeding contending that
    the protections afforded under the temporary protections do not protect tenants
    from no-fault evictions due to a lack of specific wording. Although we find this
    argument meritless as the County COVID-19 Tenant Protections have at all times
    provided greater tenant protections than State law, such revisions are made to
    ensure all tenant protections under the County COVID-19 Tenant Protections
    remain fully available to impacted tenants. (Board resolution Nov. 16, 2021.)
    The Board thus approved a resolution “to state that the provisions contained therein
    are more restrictive, or provide greater tenant protections, than state law, where not
    preempted, in areas relating to rent increases, evictions, relocation assistance for displaced
    tenants, protections against harassment, discrimination of tenants and residential
    applicants, and other tenant protections.” (Ibid.)
    Also, pursuant to a January 25, 2022 Board resolution, the present version of the
    LACEM states, “A Tenant shall not be evicted where grounds for terminating the tenancy or
    occupancy is not based on any alleged fault by the Tenant, including, but not limited to, those
    stated in Code of Civil Procedure section 1161 et seq., Civil Code section 1946.2 et seq., and
    Chapters 8.52 and 8.57 of the County Code. No-Fault termination of tenancy or occupancy also
    includes the intent to demolish or to substantially remodel the real property.” (LACEM,
    § VI.A.2, italics added.)
    9
    We view the November 16, 2021 and January 25, 2022 Board resolutions as stating in
    express terms what was implied in the February 23, 2021 version of the LACEM: that the Los
    Angeles County ordinance’s COVID-19 tenant provisions were more protective than those
    provided by the state. Hence, as the resolutions merely constituted a clarification of existing
    intent, they may properly be applied to the present case. (See Kern v. County of Imperial
    (1990) 
    226 Cal.App. 3d 391
    , 400 [“while an intention to change the law is usually inferred
    from a material change in the language of the statute, a consideration of the surrounding
    circumstances may indicate merely a legislative intent to clarify the law”]; Forde v. Cory
    (1977) 
    66 Cal.App.3d 434
    , 438 [determining that the Legislature intended only to clarify, as
    opposed to change, existing law where non-substantial amendments of a statute and “statutory
    events often warrant the inference that the Legislature intended to clarify preexisting law”].)
    Failure to Comply with the LACEM’s Authorization for Owner Move-In Evictions
    Pointing to a June 22, 2021 amendment to the LACEM, plaintiffs maintain that, even if
    the LACEM was not preempted, the court should have overruled the demurrer because the
    amendment “expressly permit[s] an ‘owner’ . . . to evict a tenant in order to move back in.”
    (Capitalization omitted.) Plaintiff’s argument lacks merit because the amendment required a
    greater showing for an eviction than merely stating the owner sought to move in.
    The LACEM, as amended June 22, 2021, immediately after the provision barring no-
    fault just cause evictions, stated, “[A]s of July 1, 2021, a Landlord, who purchased a single-
    family home on or before June 30, 2021, and seeks in good faith to recover possession of said
    single-family home for the Landlord’s or Landlord’s Family Member’s own use and occupancy
    as the Landlord’s or Landlord’s Family Member’s principal residence for at least thirty-six (36)
    consecutive months, may displace the current Residential Tenant and Residential Tenant’s
    household members in order to move into the single-family home subject to the following
    conditions.” (LACEM § V.A.3 (June 22, 2021 version).)6 The ordinance proceeded to set forth
    numerous conditions required in order for an owner move-in to be allowed, including that the
    6
    On January 25, 2022, the Board extended the LACEM through December 31, 2022.
    10
    tenant is able to pay rent and does not have COVID-19-related financial impacts; the landlord
    or landlord’s family member who seeks to move in is “similarly situated” as the tenant who will
    be displaced with regard to age and any disability; the landlord provides a copy of the eviction
    notice to the Director and discloses to the Director the names of the persons who seek to move
    in; and the landlord pays the tenant relocation assistance as set forth in regulations. (Id. at
    § V.A.3.(a)-(f).)7
    The change to the LACEM was effectuated after the 60-day eviction notice was served
    in April 2021, and there is no indication plaintiffs satisfied any of the section V.A.3
    requirements for an owner move-in eviction. Plaintiffs’ July 14, 2021 complaint did not allege
    satisfaction of the requirements. Thus, the June 22, 2021 amendment of the LACEM is not a
    valid ground to reverse the trial court’s determination.
    DISPOSITION
    The September 16, 2021 judgment is affirmed. Defendant is to recover costs on appeal.
    _________________________
    Ricciardulli, J.
    We concur:
    _________________________                           _________________________
    Kumar, Acting P. J.                                 Richardson, J.
    7
    The Guidelines were amended effective July 1, 2021 to mirror the authorization for owner
    move-ins and accompanying requirements. (Guidelines, § 6.3.)
    11