2710 Sutter Ventures, LLC v. Millis ( 2022 )

Filed 8/31/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
2710 SUTTER VENTURES,
LLC, et al.,
Plaintiffs and Appellants, A162439
v. (San Francisco City &
SEAN MILLIS et al., County Super. Ct. No.
CUD-20-667481)
Defendants and
Respondents.
Plaintiffs brought this unlawful detainer action to evict
defendants after invoking the Ellis Act (Gov. Code, § 7060 et seq.)
(the Act). The trial court sustained defendants’ demurrer, finding
that plaintiffs’ notice terminating defendants’ tenancy was
defective and plaintiffs failed to provide “proper required
information regarding relocation payments” under section 37.9A,
subdivision (e)(4) (section 37.9A(e)(4)) of the San Francisco
Administrative Code (Rent Ordinance).1 Plaintiffs argue the
judgment must be reversed because: (1) the Act preempts section
37.9A(e)(4); (2) defendants cannot assert a defense under
1An amended version of section 37.9A of the Rent
Ordinance was enacted after oral argument in this case and
became effective on July 18, 2022. (Ord. No. 91-22.) All
subsequent unspecified section references in this opinion are to
the section 37.9A of the Rent Ordinance effective prior to July 18,
2022.
1
Government Code section 7060.6 for plaintiffs’ purported failure
to comply with section 37.9A(e)(4); (3) the trial court improperly
found that plaintiffs’ notice of termination had to strictly comply
with section 37.9A(e)(4); and (4) plaintiffs should be allowed to
amend their complaint to state a cause of action for ejectment.
We find plaintiffs’ arguments unavailing and affirm.
BACKGROUND
Plaintiffs own a three-unit residential rental property in
San Francisco and invoked the Act.2 Defendants Sean Millis and
Michelle Mattera are long-term tenants of one unit owned by
plaintiffs at 2710 Sutter Street (the premises). Plaintiffs pled,
based on information and belief, that Millis entered into a
tenancy agreement for the premises with plaintiffs’ predecessor
in 1995. In 1999, Millis entered into a written tenancy
agreement with plaintiffs’ predecessor; plaintiffs further alleged,
based on information and belief, that Mattera moved into the
premises as a co-tenant in 2005. Plaintiffs alleged that
defendants are the only occupants of the premises and the only
persons entitled to relocation assistance payments under the
Rent Ordinance.
On November 13, 2019, plaintiffs served defendants with a
120-Day Notice of Termination of Tenancy (the termination
notice) and half of the relocation assistance payments due to
defendants under the Rent Ordinance. In response to the
termination notice, defendants both claimed disability status,
2The facts set forth herein are taken from plaintiffs’
operative first amended complaint.
2
and plaintiffs provided to each defendant one half of the
additional relocation assistance payment due for disabled
tenants.3
On November 15, 2019, plaintiffs filed a Notice of Intent to
Withdraw Residential Units from the Rental Market (NOI) with
the San Francisco Residential Rent Stabilization and Arbitration
Board. On the same day, plaintiffs served defendants with a
Notice to Tenant of Filing of Notice of Intent to Withdraw
Residential Units from the Rental Market. Defendants exercised
their right under the Act to a one-year extension of the
withdrawal date of the premises based on their claims of
disability status. Defendants did not vacate the premises by
November 15, 2020, and plaintiffs filed an unlawful detainer suit.
With respect to the ground under which plaintiffs sought to
recover possession, the termination notice stated, “Possession of
the aforesaid premises is sought pursuant to San Francisco
Administrative Code § 37.9(a)(13) and California Government
Code §§ 7060 et. seq. The owners of the premises, 2710 Sutter
Ventures, LLC and Sutter Partner Holdings, LLC (‘owners’ or
‘landlords’) intend to withdraw from rent or lease all rental units
3 Plaintiffs state in their briefing that defendants were “in
fact” paid what they were owed, and our dissenting colleague
states that there is no dispute that there were only two “tenants”
in the accommodations at issue and such tenants were paid what
they were owed. (Dis. opn. post, at pp. 2–3) To the extent these
statements imply that such matters have been conclusively
established as fact, we note that, at this procedural stage, no
facts have been conclusively established. On this appeal from a
sustained demurrer, we accept the well-pled allegations of the
first amended complaint as true.
3
within any detached physical structure and, in addition, in the
case of any detached physical structure containing three or fewer
rental units, any other rental units on the same lot, and complies
[sic] in full with [Rent Ordinance] § 37.9A and California
Government Code §§ 7060 et. seq. with respect to each such unit;
provided, however, that a unit classified as a residential unit
under chapter 41 of the [San Francisco Administrative Code]
which is vacated under this subsection may not be put to any use
other than that of a residential hotel unit without compliance
with the provisions of [San Francisco Administrative Code]
§ 41.9.”
The relevant portions of the termination notice addressing
relocation assistance payments were as follows. On page 1, the
termination notice provided, “You have rights and obligations
under [Rent Ordinance] § 37.9A, including, but not limited to, the
right to renew the tenancy if proper notification is given within
30 days after vacating the unit, and entitlement to certain
relocation payments as described in more detail below. A true
and correct copy of [Rent Ordinance] § 37.9A is attached hereto
as Exhibit A and incorporated herein by reference. You are
hereby notified of your rights as set forth in Exhibit A.” At page
5, the termination notice stated, “You have rights to relocation
assistance payments as follows: [¶] Each tenant of the premises
shall be entitled to receive $6,985.23, one-half of which shall be
paid at the time of the service of the notice of termination of
tenancy, and one-half of which shall be paid when the tenant
vacates the unit. In the event there are more than three tenants
4
in a unit, the total relocation payment shall be $20,955.68, which
shall be divided equally by the number of tenants in the unit. If
any tenant is 62 years of age or older, or if any tenant is disabled
within the meaning of Section 12955.3 of the California
Government Code, such tenant shall be entitled to receive an
additional supplemental payment of $4,656.81, one-half of which
shall be paid within fifteen (15) calendar days of the landlord’s
receipt of written notice from the tenant of entitlement to the
supplemental relocation payment, and one-half of which shall be
paid when the tenant vacates the unit.” Plaintiffs attached as an
exhibit the applicable version of Rent Ordinance section 37.9A
and a copy of the San Francisco Rent Stabilization and
Arbitration Board’s form entitled, “Relocation Payments for
Tenants Evicted Under the Ellis Act.”
Defendants demurred to the plaintiffs’ operative first
amended complaint. As is relevant here, defendants argued their
demurrer should be sustained because the termination notice was
defective in two respects: (1) it quoted a superseded version of
section 37.9, subdivision (a)(13) (section 37.9(a)(13)) as the
ground for eviction, thus providing an inaccurate ground for
eviction4; and (2) the termination notice did not properly advise
4 After the Legislature amended the Act in 2003 to exempt
certain units in residential hotels from its reach (Pieri v. City and
County of San Francisco (2006) 137 Cal.App.4th 886, 890–891),
the San Francisco Board of Supervisors made similar
amendments to section 37.9(a)(13). The current version of this
provision, and that operative at the time plaintiffs served their
termination notice, states that a landlord shall not endeavor to
recover possession of a rental unit unless: “The landlord wishes
5
defendants of the right to relocation assistance payments because
it incorrectly referenced a superseded section of the Rent
Ordinance regarding relocation payments.
After argument at the hearing on the demurrer, the trial
court announced that it would sustain the demurrer and
explained the basis for its ruling. The trial court accepted the
defendants’ argument that strict compliance with notice
provisions was required in the unlawful detainer suit, and found
for defendants due to the following faults in the plaintiffs’
termination notice: (1) the termination notice quoted an outdated
2004 version of section 37.9(a)(13) as the ground for eviction; and
2) the termination notice did not provide the required
information regarding the right to receive relocation payments.
The court instructed defendants’ counsel to prepare an order that
complied with the court’s oral pronouncement and to send the
order to plaintiffs’ counsel for approval. The final written order
of the court contained the following language: “IT IS HEREBY
to withdraw from rent or lease all rental units within any
detached physical structure and, in addition, in the case of any
detached physical structure containing three or fewer rental
units, any other rental units on the same lot, and complies in full
with Section 37.9A with respect to each such unit; provided,
however, that guestrooms or efficiency units within a residential
hotel, as defined in Section 50519 of the Health and Safety Code,
may not be withdrawn from rent or lease if the residential hotel
has a permit of occupancy issued prior to January 1, 1990, and if
the residential hotel did not send a notice of intent to withdraw
the units from rent or lease (Administrative Code Section
37.9A(f), Government Code Section 7060.4(a)) that was delivered
to the Rent Board prior to January 1, 2004.” (§ 37.9,
subd. (a)(13).)
6
ORDERED that Defendants’ Demurrer to the First Amended
Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. The
Notice of Termination is fatally defective. Plaintiffs failed to
provide proper required information regarding relocation
payments under San Francisco Rent Ordinance § 37.9A(e)(3)-(4).”
Plaintiffs timely appealed after entry of judgment.
DISCUSSION
I. Standard of Review
We review an order sustaining a demurrer de novo.
(Boshernitsan v. Bach (2021) 61 Cal.App.5th 883, 889.) We
accept the truth of material facts properly pled in the operative
complaint, but not contentions, deductions, or conclusions of fact
or law. (Ibid.) The proper interpretation of a statute is a
question of law reviewed review de novo. (Id. at p. 890.)
Whether state law preempts a local ordinance is also question of
law subject to de novo review. (Johnson v. City and County of
San Francisco (2006) 137 Cal.App.4th 7, 12 (Johnson).)
II. The Act
The Act provides that “[n]o public entity . . . shall, by
statute, ordinance, or regulation, or by administrative action
implementing any statute, ordinance or regulation, compel the
owner of any residential real property to offer, or to continue to
offer, accommodations in the property for rent or lease . . . .”
(Gov. Code, § 7060, subd. (a).)5 “A landlord who complies with
5The Act excepts certain residential hotels from its ambit
(Gov. Code, § 7060, subd. (a)(1)–(3)), but that exception is not
relevant here.
7
the Ellis Act may therefore go out of the residential rental
business by withdrawing the rental property from the market.”
(Drouet v. Superior Court (2003) 31 Cal.4th 583, 587 (Drouet).)
The Legislature enacted the Act following the California Supreme
Court’s opinion in Nash v. City of Santa Monica (1984) 37 Cal.3d
97, which upheld city charter provisions that required owners of
residential rental property to obtain a permit, available only in
certain situations, before they could remove property from the
rental market. (Gov. Code, § 7060.7.) “[T]he 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.”
(City of Santa Monica v. Yarmark (1988) 203 Cal.App.3d 153, 165
(Yarmark).)
The “Act contains explicit boundaries, leaving areas for
local control in a fashion consistent with its terms.” (Yarmark,
supra, 203 Cal.App.3d at p. 167.) “[C]ourts both recognize and
respect the reservations of power set forth in the Ellis Act with
respect to local government authorities.” (San Francisco
Apartment Assn. v. City and County of San Francisco (2016)
3 Cal.App.5th 463, 478.) For example, the Act provides that
“[n]otwithstanding Section 7060, nothing in this chapter does any
of the following: . . . Diminishes or enhances any power in any
public entity to mitigate any adverse impact on persons displaced
by reason of the withdrawal from rent or lease of any
accommodations.” (Gov. Code, § 7060.1, subd. (c).) The Act does
8
not override procedural protections designed to prevent abuse of
the right to evict tenants (id. at § 7060.7, subd. (c)), and it does
not supersede certain statutory schemes, including those for
landlord-tenant relationships (Civ. Code, § 1925 et seq.) and
summary proceedings for obtaining possession of real property
(Code Civ. Proc., § 1159 et seq.). (Gov. Code, § 7060.1, subd. (d).)
The Act also allows public entities in rent control jurisdictions to
require a landlord to provide notice to the public entity of the
landlord’s intention to withdraw a property from the rental
market and to provide notice to tenants of this filing. (Gov. Code,
§ 7060.4, subd. (a).) The public entity may also enact legislation
setting forth controls on re-renting a property once a notice of
withdrawal has been filed, and it may require notice to tenants of
their rights with respect to the re-rental. (Drouet, supra,31 Cal.4th at p. 601 (conc. opn. J. Brown); Gov. Code, § 7060.2,
subds. (a)(1), (b)).6
6 The Act provides that any act permitted under
Government Code sections 7060.2 and 7060.4 may be taken by
the public entity by statute or ordinance, or by regulation as
specified in Government Code section 7060.5. (Gov. Code,
§§7060.2, 7060.4, subd. (a).) Government Code section 7060.5
states, “The actions authorized by Sections 7060.2 and 7060.4
may be taken by regulation adopted after public notice and
hearing by a public body of a public entity, if the members of the
body have been elected by the voters of the public entity. The
regulation shall be subject to referendum in the manner
prescribed by law for the ordinances of the legislative body of the
public entity except that: [¶] (a) The decision to repeal the
regulation or to submit it to the voters shall be made by the
public body which adopted the regulation. [¶] (b) The regulation
shall become effective upon adoption by the public body of the
public entity and shall remain in effect until a majority of the
9
The Act contemplates that an owner may seek to displace a
tenant or lessee from accommodations removed from the rental
market under the Act pursuant to an unlawful detainer action.
(Gov. Code, § 7060.6.) If an owner elects to pursue an unlawful
detainer suit, “[T]he tenant or lessee may appear and answer or
demur pursuant to Section 1170 of the Code of Civil Procedure
and may assert by way of defense that the owner has not
complied with the applicable provisions of this chapter, or
statutes, ordinances, or regulations of public entities adopted to
implement this chapter, as authorized by this chapter.” (Ibid.)
A. The Rent Ordinance
The City and County of San Francisco (the City) enacted
the Rent Ordinance in 1979 for the purposes of, among other
things, limiting rent increases for tenants in occupancy and
restricting the grounds on which landlords could evict tenants.
(Danger Panda, LLC v. Launiu (2017) 10 Cal.App.5th 502, 506
(Danger Panda).)
“In May 1986, following the passage of the Ellis Act, the
Rent Ordinance was amended to add [section 37.9(a)(13)], which
recognizes a landlord’s right to withdraw a residential unit from
the rental market.” (Danger Panda, supra, 10 Cal.App.5th at
p. 507.) “Section 37.9A of the Rent Ordinance was enacted at the
same time as section 37.9(a)(13) in order to confer rights on
certain tenants displaced by the Ellis Act.” (Ibid.) Prior to
voters voting on the issue vote against the regulation,
notwithstanding Section 9235, 9237, or 9241 of the Elections
Code or any other law.”
10
amendments in 2005, the City provided for relocation assistance
payments to elderly and disabled tenants, as well as low-income
tenants, who were displaced by withdrawals under the Act.
(Coyne v. City and County of San Francisco (2017) 9 Cal.App.5th
1215, 1219 (Coyne).)
“In 2005, the City enacted ordinance No. 21–05 (‘Ordinance
21–05’), which lifted the restrictions limiting the relocation
assistance payments to low-income tenants and extended them to
all displaced tenants. [Citation.] For units with more than three
tenants, Ordinance 21–05 set $13,500 as the maximum relocation
payment a landlord was required to pay per unit, in addition to
the $3,000 add-on for evicted elderly and disabled tenants.
[Citation.] The ordinance also indexed these payments to annual
inflation rates.” (Coyne, supra, 9 Cal.App.5th at p. 1219.)
Ordinance 21-05 further stated, “Any notice to quit pursuant to
Section 37.9(a)(13) shall notify the tenant or tenants concerned of
the right to receive payment under Subsections 37.9A(e)(1) or (2)
or (3) and the amount of payment which the landlord believes to
be due.” (§ 37.9A, former subd., (e)(4).)
In 2017, this Division addressed whether a tenant’s minor
child was entitled to be paid a relocation assistance payment as a
“tenant” under the Rent Ordinance. (Danger Panda, supra,
10 Cal.App.5th at pp. 505–506.) The trial court granted the
defendants’ motion to quash the plaintiff’s summons and
unlawful detainer complaint because the plaintiff failed to tender
a relocation assistance payment to the minor. (Id. at p. 511.)
This court reversed the judgment, interpreting section 37.9A,
11
subdivision (e)(3) to require payment of relocation assistance to a
“tenant,” and finding that a lawful minor occupant was not a
“tenant” as defined in the Rent Ordinance. (Id. at p. 523.)
After Danger Panda, the City enacted ordinance No. 123-17
to amend section 37.9A, subdivision (e)(3). This provision
provided in pertinent part, “Where a landlord seeks eviction
based upon Section 37.9(a)(13), and the notice of intent to
withdraw rental units is filed with the Board on or after
February 20, 2005, relocation payments shall be paid to the
tenants as follows: [¶] (A) Subject to subsections 37.9A(e)(3)(B),
(C) and (D) below, the landlord shall be required to pay a
relocation benefit on behalf of each authorized occupant of the
rental unit regardless of the occupant’s age (“Eligible Tenant”).
The amount of the relocation benefit shall be $4,500 per Eligible
Tenant, one-half of which shall be paid at the time of the service
of the notice of termination of tenancy, and one-half of which
shall be paid when the Eligible Tenant vacates the unit.”
(§ 37.9A, subd. (e)(3)(A), italics added.) For units with more than
three “Eligible Tenants,” $13,500 is the maximum relocation
payment, in addition to the $3,000 add-on for evicted elderly and
disabled tenants, and payments are indexed to annual inflation
rates. (Id. at subd. (e)(3)(B)–(D).) The Rent Ordinance still
provided that “[a]ny notice to quit pursuant to Section 37.9(a)(13)
shall notify the tenant or tenants concerned of the right to receive
payment under Subsections 37.9A(e)(1) or (2) or (3).”
(§ 37.9A(e)(4).)
12
III. The Act Does Not Preempt Section 37.9A(e)(4)7
We turn first to plaintiffs’ argument that the Act preempts
section 37.9A(e)(4).
“ ‘A city or county may make and enforce within its limits
all local, police, sanitary, and other ordinances and regulations
that do not conflict with general law. (Cal. Const., art. XI, § 7.) If
local legislation conflicts with state law, it is preempted by the
state law and is void.’ ” (Johnson, supra, 137 Cal.App.4th at
p. 13.)
“A conflict between local ordinance and state law exists if
the local law duplicates, contradicts, or regulates an area fully
occupied by general law, either expressly or by legislative
implication. [Citation.] ‘The first step in a preemption analysis
is to determine whether the local regulation explicitly conflicts
with any provision of state law. [Citation.] [¶] If the local
legislation does not expressly contradict or duplicate state law,
its validity must be evaluated under implied preemption
principles. “In determining whether the Legislature has
preempted by implication to the exclusion of local regulation we
7 Although defendants point out that plaintiffs did not raise
a preemption argument below, we will entertain plaintiffs’
argument on appeal from a judgment following a ruling
sustaining a demurrer without leave to amend. (Gutierrez v.
Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234,
1244–1245 [appellate review of a general demurrer is de novo to
determine whether the complaint alleges “facts sufficient to state
a cause of action under any possible legal theory,” so a legal
theory presented for the first time on appeal may be raised
(italics omitted)].)
13
must look to the whole purpose and scope of the legislative
scheme. There are three tests: ‘(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 municipality.’ ” ’ ” (Johnson, supra,
137 Cal.App.4th at pp. 13–14.)
Relying on Johnson and Coyne, plaintiffs argue that the Act
preempts section 37.9A(e)(4) because that provision imposes a
prohibitive price on a landlord’s right to exit the rental market.
With this argument, plaintiffs seek to invoke conflict, or
contradiction, preemption. (Coyne, supra, 9 Cal.App.5th at
pp. 1226–1227 [“[T]he prohibitive price standard is the
appropriate standard to determine conflict [or contradiction]
preemption under the Ellis Act”].)
In Johnson, this Division considered whether the Act
preempted part of the then-operative version of section
37.9A(e)(4), which required landlords to notify tenants of the
right to receive relocation assistance payments and “ ‘the amount
of payment which the landlord believes to be due.’ ” (Johnson,
supra, 137 Cal.App.4th at pp. 11, 16.) The “belief requirement”
was the only part of section 37.9A(e)(4) at issue in Johnson.
14
(Ibid.) Because the Rent Ordinance provided for additional
relocation assistance payments to elderly or disabled tenants, the
belief requirement made the landlord state whether he or she
believed the tenants were entitled to payment based on their age
or disability. (Ibid.) The court held this requirement was
preempted because “it create[d] a substantive defense in eviction
proceedings not contemplated by the Act.” (Id. at p. 18.) The
court reviewed the Act’s provisions regarding tenant notice,
observing that “ ‘[b]y carefully spelling out certain types of notice
which public entities may require, the Act clearly indicates that
only these types are authorized and other, additional notice
requirements are not permissible.’ ” (Id. at p. 16.) The court
considered several ways a landlord’s statements under the “belief
requirement” could complicate unlawful detainer proceedings by
resulting in tenant challenges to the accuracy of the landlord’s
belief or claims against the landlord where the landlord
mistakenly suggested the tenant had a disability. (Id. at p. 17.)
The court also rejected the City’s argument that the belief
requirement was permissible under Government Code section
7060.1, subdivision (c), finding the requirement did not truly
“mitigate [the] adverse impact[s]” on displaced tenants, as
required under that statute. (Id. at pp. 16, fn. 7, 18.) Instead, by
placing the burden on the landlord to state his or her belief about
the tenant’s entitlement to assistance without first requiring the
tenant to offer some showing of entitlement, the belief
15
requirement placed a “prohibitive price on a landlord’s right to
exit the rental market.”8 (Ibid.)
Likewise, Coyne found that certain provisions of the Rent
Ordinance, which required a landlord who evicted a tenant under
the Act to pay two years’ worth of “rent differential” between the
rent-controlled price of the unit and the market price, imposed a
“prohibitive price” on landlords’ exercise of their rights to go out
of business. (Coyne, supra, 9 Cal.App.5th at pp. 1218, 1226–
1227.) As in Johnson, Coyne rejected the argument that the rent
differential payments mitigated the adverse impacts of the
landlord’s decision to remove residential units from the market:
Rent differential payments were not directed at impacts such as
the need to pay first and last months’ rent and a security deposit
on a replacement rental or moving expenses, but rather were
“ ‘explicitly implemented to subsidize the payment of rent that a
displaced tenant will face on the open market, regardless of
income.’ ” (Id. at p. 1227, italics omitted.) The provisions
requiring rent differential payments were therefore invalid for
imposing a condition not found in the Act. (Id. at pp. 1229–1230.)
Unlike the provisions of the Rent Ordinance at issue in
Johnson and Coyne, we cannot conclude that the Act preempts
section 37.9A(e)(4). “Section 7060.1(c)’s ‘safe harbor’ provision
authorizes cities to mitigate ‘any adverse impact’ from
8 The language of the “belief requirement” (i.e., “the amount
of payment which the landlord believes to be due”) still appeared
in the official published version of the San Francisco
Administrative Code, although Johnson held the Act preempted
such language. (§ 37.9A(e)(4).)
16
displacement.” (Coyne, supra, 9 Cal.App.5th at p. 1227.) The
Rent Ordinance’s requirement that landlords pay reasonable
relocation assistance benefits is a “valid and appropriate
exercise[] of a public entity’s power to mitigate adverse impacts
on displaced tenants under section 7060.1, subdivision (c).”
(Coyne, at p. 1228; see also Pieri v. City and County of San
Francisco, supra, 137 Cal.App.4th at pp. 893–894 (Pieri);
Johnson, supra, 137 Cal.App.4th at p. 16, fn. 7 [“[S]ection 7060.1,
subdivision (c), specifically addresses the permissibility of
relocation assistance, providing that nothing in the Ellis Act
‘[d]iminishes or enhances any power in any public entity to
mitigate any adverse impact on persons displaced by reason of
the withdrawal from rent or lease of any accommodations’ ”].)
Unlike the belief requirement at issue in Johnson, and as
Johnson itself appears to have recognized (Johnson, at pp. 16,
fn. 7, 18), notice to tenants of the right to relocation payments
validly serves to mitigate the adverse impacts on displaced
persons under Government Code section 7060.1, subdivision (c).
(See id. at § 7060.7, subd. (c) [the Act does not override
procedural protections designed to prevent abuse of right to evict
tenants].)
Nor does section 37.9A(e)(4)’s notice requirement create an
undue burden. “Any notice to quit pursuant to Section
37.9(a)(13) shall notify the tenant or tenants concerned of the
right to receive [relocation assistance] payment . . . .”
(§ 37.9A(e)(4).) The notice required is to “tenant” or “tenants.”
As Danger Panda explained, “tenant” as used in section 37.9A,
17
subdivision (e) is defined in section 37.2, subdivision (t) of the
Rent Ordinance and means persons “ ‘entitled by written or oral
agreement, sub-tenancy approved by the landlord, or by
sufferance, to occupy a residential dwelling unit to the exclusion
of others.’ ” (Danger Panda, supra, 10 Cal.App.5th at pp. 513–
517; see also Ord. No.123-17, §§ 1–2 [amending section 37.9A,
subd. (e)(3) after Danger Panda to require relocation assistance
benefits be paid on behalf of “Eligible Tenants” rather than
“tenants,” but leaving reference to “tenant” and “tenants” under
section 37.9A(e)(4)].) Thus, what is required is that the landlord
notify tenants, who clearly reside at an address known to the
landlord, in the termination notice of the right to relocation
assistance payments under section 37.9A, subdivision (e). This
simple notice requirement is easily complied with and does not
put a prohibitive price on the landlord’s right to go out of
business.
Finally, plaintiffs devote much of their briefing to the
argument that, on their face, the timing requirements for
payment under section 37.9A, subdivision (e)(3)(A) place a
prohibitive price on the landlord’s ability to go out of business
because the landlord must guess who lives in a residence and pay
that person relocation assistance on day one, rather than having
the person who claims entitlement to the benefit provide proof of
occupancy before the landlord must pay. But defendants’
argument below was that the termination notice improperly
failed to inform defendants that the right to relocation benefits
included the right to payment of such benefits on behalf of
18
“Eligible Tenants,” and children specifically. Plaintiffs do not
appear to argue that the City has no authority to require that
relocation assistance benefits be paid on behalf of authorized
occupants. Instead, they argue the timing of the Rent
Ordinance’s payment requirement creates the undue burden.
The trial court did not sustain a demurrer on the ground that
plaintiffs’ notice of termination failed to provide notice of, or
satisfy, the Rent Ordinance’s payment timing mechanism, so any
finding that the Act preempts the payment timing provisions of
section 37.9A, subdivision (e)(3)(A) would not assist plaintiffs
here. We therefore do not address this argument.
IV. Government Code Section 7060.6
Plaintiffs next contend that the judgment must be reversed
because defendants cannot assert failure to comply with section
37.9A, subdivision (e)(3) or (e)(4) as a defense under Government
Code section 7060.6. More specifically, plaintiffs seem to suggest
that only noncompliance with local regulations (Gov. Code,
§ 7060.5) that implement Government Code sections 7060.2 and
7060.4 may serve as a defense under Government Code section
7060.6. Defendants counter that section 37.9A(e)(4) implements
the Act, as authorized by the Act, and the defense under
Government Code section 7060.6 is not limited to noncompliance
with local actions taken pursuant to Government Code sections
7060.2 and 7060.4. On this question of statutory interpretation,
defendants have the better argument.
In construing a statute, “ ‘our fundamental task is to
ascertain the Legislature’s intent so as to effectuate the purpose
19
of the statute.’ [Citation.] We start with the language of each
statute, giving the words their usual and ordinary meaning, and
construe the statutory language in the context of the statute as a
whole and the overall statutory scheme, giving significance to
every word, phrase, sentence, and part of an act. We do not
construe statutes in isolation, but rather read each statute with
reference to the entire scheme of law of which it is part so that
the whole may be harmonized and retain its effectiveness. If
statutory terms are ambiguous, we may examine extrinsic
sources, including the ostensible objects to be achieved and the
legislative history. In such circumstance, we will choose the
construction that comports most closely with the Legislature’s
apparent intent, and endeavor to promote rather than defeat the
statute’s general purpose, and avoid a construction that would
lead to absurd consequences.” (Lincoln Place Tenants Assn. v.
City of Los Angeles (2007) 155 Cal.App.4th 425, 440.)
Government Code section 7060.6’s plain language
establishes that a defense thereunder is not limited to
noncompliance with regulations adopted under Government Code
sections 7060.2, 7060.4, and 7060.5. The statute states, “If an
owner seeks to displace a tenant or lessee from accommodations
withdrawn from rent or lease pursuant to this chapter by an
unlawful detainer proceeding, the tenant or lessee may appear
and answer or demur pursuant to Section 1170 of the Code of
Civil Procedure and may assert by way of defense that the owner
has not complied with the applicable provisions of this chapter, or
statutes, ordinances, or regulations of public entities adopted to
20
implement this chapter, as authorized by this chapter.”
(Gov. Code, § 7060.6.) The Legislature could have confined the
defense set forth in Government Code section 7060.6 to an
owner’s noncompliance with statutes, ordinances, or regulations
of public entities adopted to implement Government Code
sections 7060.2 and 7060.4, as authorized by those specific
provisions. (See Gov. Code, § 7060.5 [“The actions authorized by
Sections 7060.2 and 7060.4 may be taken by regulation . . . .”].) It
did not. Instead, a broader defense may be asserted for violation
of the provisions of the Act, “or statutes, ordinances, or
regulations” adopted to implement the Act, “as authorized by this
chapter.” (Id. at § 7060.6) Section 37.9A(e)(4) is such a provision.
First, the Act authorized the City to enact section
37.9A(e)(4) through Government Code section 7060.1, subdivision
(c). The Act renders void local legislation that compels a landlord
to stay in the residential rental business (Gov. Code, § 7060), but
it “contains explicit boundaries, leaving areas for local control in
a fashion consistent with its terms.” (Yarmark, supra,
203 Cal.App.3d at p. 167.) When enacted, Government Code
section 7060.1, subdivision (c) allowed public entities to mitigate
the adverse impacts of a landlord’s decision to withdraw
accommodations only for displaced persons in low-income
households. (Pieri, supra, 137 Cal.App.4th at pp. 889–890.) The
2003 amendments (Stats. 2003, ch. 766, § 2) removed the low-
income restriction, so section 7060.1, subdivision (c) of the
Government Code now recognizes a public entity’s authority to
enact ordinances that mitigate the adverse impacts on all
21
displaced persons. (Id. at pp. 890–892, 893, fn. 4 [“We interpret
current section 7060.1, subdivision (c)’s provision that the Ellis
Act was not intended to diminish or enhance public entities’
power to mitigate adverse impacts on tenants displaced from any
accommodation to mean that local governments may take such
actions as would be allowed under their police power in the
absence of the [Act]”]; Coyne, supra, 9 Cal.App.5th at p. 1227
[“Section 7060.1, subd. (c)’s ‘safe harbor’ provision authorizes
cities to mitigate ‘any adverse impact’ from displacement”]. The
Act thus authorized the City to require landlords to give notice of
the right to relocation assistance benefits as part of the power to
mitigate the adverse impacts on displaced persons.
Next, under the plain meaning of the term, section
37.9A(e)(4) “implements” the Act, as required for a non-
compliance defense to fall within Government Code section
7060.6. “Implement” means “to carry out, accomplish; to give
practical effect to and ensure actual fulfillment by concrete
measures.” (Webster’s New Collegiate Dictionary (1981) p. 571.)
Plaintiffs concede that local ordinances or regulations enacted by
public entities that are authorized, but not required, by
Government Code sections 7060.2 and 7060.4 implement the Act.
When these local restrictions are adopted by ordinance, the
public entity’s police power is not preempted, and the local
legislation gives practical effect to the Act’s authorization of
power. Similarly, through Government Code section 7060.1,
subdivision (c), the Act authorizes the City’s power to mitigate
adverse impacts on persons displaced by the withdrawal of
22
accommodations from the rental market. (Coyne, supra,
9 Cal.App.5th at p. 1227; Pieri, supra, 137 Cal.App.4th at p. 893,
fn. 4.) The City enacted section 37.9A(e)(4) to give practical effect
to the power authorized by Government Code section 7060.1,
subdivision (c). As such, defendants may assert a noncompliance
defense under Government Code section 7060.6 for violation of
section 37.9A(e)(4).
Furthermore, even if Government Code section 7060.6 were
interpreted to create a defense only for noncompliance with
provisions of the Act, and the statutes, ordinances, or regulations
authorized by Government Code sections 7060.2 and 7060.4, we
would still find that defendants could assert noncompliance with
section 37.9A(e)(4) as a defense in this action. This is so because
the City conditioned a landlord’s withdrawal from the rental
market on compliance with section 37.9A, subdivision (e). (§ 37.9,
subd. (a)(13) [stating landlord “shall not endeavor to recover
possession of a rental unit” unless the conditions enumerated
therein are met].) The Act preempts only “local measures
providing substantive grounds for defenses in unlawful detainer
actions . . . to the extent they conflict with the [ ] Act.” (Yarmark,
supra, 203 Cal.App.3d at p. 171, italics added.) As noted, ante,
the City’s basic requirements that landlords pay reasonable
relocation assistance benefits and give notice of the right thereto
are permitted by, and do not conflict with, the Act. And
Government Code section 7060.6 does not state that only the
defenses specified therein may be asserted in an unlawful
detainer proceeding. Thus, separate and apart from Government
23
Code section 7060.6, the City created a defense to eviction that
does not conflict with the Act.
Indeed, plaintiffs’ contrary interpretation—whereby
Government Code section 7060.6 would allow a defense only for
noncompliance with the provisions of the Act and local statutes,
ordinances, or regulations authorized by Government Code
sections 7060.2 and 7060.4, while at the same time prohibiting a
defense for failure to comply with the general notice and
relocation assistance payments requirements of section 37.9A,
subdivision (e)—would be absurd. Under plaintiffs’ view,
although a local ordinance may validly require notice and
reasonable relocation assistance payments in evictions under the
Act, failure to comply with those requirements could not be a
defense to summary eviction. Plaintiffs suggest that tenants
could instead bring separate lawsuits against owners after
having been evicted. But one main purpose of relocation
assistance payments is to provide displaced tenants with money
to assist with the costs of moving. Any construction of
Government Code section 7060.6 that prohibits a tenant from
defending against summary eviction based on the owner’s failure
to notify the tenant of the right to relocation assistance benefits
or to provide such benefits would largely defeat the purpose of
the notice and relocation assistance requirements, and thus
undermine the mitigation measures authorized by the Act.
V. Compliance with the Rent Ordinance
Plaintiffs’ final argument requires us to determine whether
the termination notice complied with section 37.9A(e)(4) and,
24
relatedly, what standard applies to assess such compliance.
Defendants argue that plaintiffs did not strictly comply with the
notice provision as required by the Rent Ordinance and unlawful
detainer jurisprudence (e.g., Kwok v. Bergren (1982)
130 Cal.App.3d 596, 599–600). Plaintiffs initially argued that
Government Code section 7060.6 provides the applicable
standard, and that section 7060.6 mandates a straightforward
“mere compliance” standard by abrogating the strict compliance
standard used in unlawful detainer actions.9 In their
supplemental brief, however, plaintiffs claim that the doctrine of
substantial compliance applies.10 As set forth below, we conclude
that, regardless of whether the strict compliance standard
applies to the notice at issue, the trial court correctly found a lack
of compliance.
Courts have applied the doctrine of substantial compliance
with statutory requirements when, as a practical matter, they
can reasonably conclude that partial compliance with a law has
fully attained the statute’s objectives. (3 Sutherland, Statutory
Construction (8th ed. 2021) § 57:26.) “ ‘ “Substantial compliance,
as the phrase is used in the decisions, means actual compliance
9In relying on Government Code section 7060.6, at least for
purposes of this argument, plaintiffs appear to accept that a
defense for noncompliance with section 37.9A(e)(4) may be
asserted under Government Code section 7060.6.
10 We requested that the parties provide supplemental
briefing on the questions of whether the doctrine of substantial
compliance applies in this unlawful detainer proceeding and
whether the doctrine would apply in a common law action for
ejectment.
25
in respect to the substance essential to every reasonable objective
of the statute.” [Citation.] Where there is compliance as to all
matters of substance[,] technical deviations are not to be given
the stature of noncompliance. [Citation.] Substance prevails
over form. When the plaintiff embarks [on a course of substantial
compliance], every reasonable objective of [the statute at issue]
has been satisfied.’ [Citation.] ‘Thus, the doctrine gives effect to
our preference for substance over form, but it does not allow for
an excuse to literal noncompliance in every situation.’ ’ ” (Troyk
v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1332–1333,
italics omitted.)
Nonetheless, “strict compliance with a statute is warranted
when our Legislature evinces its intent that the statute’s
requirements are to be followed precisely. We may infer such an
intent when (1) ‘the Legislature has provided a detailed and
specific mandate’ [Citations], or (2) ‘the intent of [the] statute can
only be served by demanding strict compliance with its terms.’ ”
(Prang v. Los Angeles County Assessment Appeals Board No. 2
(2020) 54 Cal.App.5th 1, 19 (Prang); see People v. CHR Herbal
Remedies (2017) 12 Cal.App.5th Supp. 26, 31 [rules of statutory
interpretation apply to ordinances].) Further, “the doctrine of
substantial compliance does not apply at all when a statute’s
requirements are mandatory, instead of merely directory.
[Citations.] A mandatory statute or directive ‘is one that is
essential to the promotion of the overall statutory design and
thus does not permit substantial compliance.’ ” (Troyk v.
26
Farmers Group, Inc., supra, 171 Cal.App.4th at p. 1333 (italics
omitted).)
Here, the enactment against which compliance must be
measured is the Rent Ordinance. The Act allows the San
Francisco Board of Supervisors to exercise its power to require
the notice and relocation assistance payments at issue (Gov.
Code, §§ 7060.1, subd. (c); 7060.7, subd. (c)), and the Legislature
enacted this allowance with awareness of pre-Act case law that
upheld local government authority to require relocation
assistance payments and to create a substantive defense to
evictions for violation of such requirement. (See Pieri, supra,
137 Cal.App.4th at pp. 892–893; see also Briarwood Properties,
Ltd. v. City of Los Angeles (1985) 171 Cal.App.3d 1020, 1032.)
Furthermore, the Act does not dictate the language of local
legislation aimed at mitigating the adverse impacts on displaced
persons or local legislation providing procedural protections
designed to prevent abuse of the right to evict. (Gov. Code,
§§ 7060.1, subd. (c), 7060.7, subd. (c).) Thus, so long as local
legislation providing for mitigation does not conflict with the Act,
the power to dictate the terms thereof rests with local
government.
In this case, the local government has made clear its intent
that the Rent Ordinance’s requirements be followed precisely.
(Prang, supra, 54 Cal.App.5th at p. 19.) The Rent Ordinance
provides that a landlord “shall not endeavor to recover possession
of a rental unit unless . . . [t]he landlord wishes to withdraw from
rent or lease all rental units within any detached physical
27
structure and, in addition, in the case of any detached physical
structure containing three or fewer rental units, any other rental
units on the same lot, and complies in full with Section 37.9A
with respect to each such unit[.]”11 (§ 37.9, subd. (a)(13), italics
added.) “In full” is synonymous with “fully,” which means “in a
full manner or degree: completely.” (Webster’s New Collegiate
Dict. (1981) p. 460.) On its face, then, the Rent Ordinance
requires complete compliance with section 37.9A(e)(4). Section
37.9A(e)(4) also states that “[a]ny notice to quit pursuant to
Section 37.9(a)(13) shall notify the tenant or tenants concerned of
the right to receive payment under Subsections 37.9A(e)(1) or (2)
or (3)[.]” (Italics added.) Use of the word “shall,” coupled with
the plain language of section 37.9, subdivision (a)(13), evinces the
San Francisco Board of Supervisors’ intent that the notice
requirement under section 37.9A(e)(4) be complied with precisely.
Further, the directive at issue is that the landlord notify
tenants of the full scope of the right to receive relocation
assistance payments under section 37.9A, subdivision (e)(1), (2),
or (3). In finding compliance here, our dissenting colleague seems
to suggest that the statute only requires the landlord to provide
notice personalized to each tenant’s specific circumstances.
11 In their supplemental brief, plaintiffs argue that the text
of the Rent Ordinance does not use the adjective “strictly” to
modify “comply.” In so arguing, plaintiffs concede that the
language of the Rent Ordinance is pertinent. In a footnote,
plaintiffs state that the Act may preempt the Rent Ordinance’s
use of the term “in full,” but we decline to consider an argument
mentioned only in a footnote. (Schrage v. Schrage (2021)
69 Cal.App.5th 126, 140, fn. 6.)
28
(Dis. opn. post, at p. 3) Under this theory, for example, notice of
the right to additional relocation assistance payments based on
elderly and disabled status would be required only if the tenant
at issue were, in fact, elderly or disabled. But Johnson forecloses
such an interpretation. There, the court held that the Act
preempted the “belief requirement” in the then-operative version
of section 37.9A(e)(4), which required landlords to notify tenants
of “ ‘the amount of [relocation assistance] payment which the
landlord believes to be due.’ ” (Johnson, supra, 137 Cal.App.4th
at pp. 11, 16, italics added.) Because this belief requirement put
the burden on the landlord to, in essence, personalize the notice
by stating whether the tenants were entitled to payment based
on their age or disability—information potentially unknown to
the landlord—and there was a substantive defense to eviction for
violation of this requirement, the belief requirement placed a
prohibitive price on the landlord’s right to exit the rental market
and was preempted. (Id. at pp. 16–18.) Plaintiffs have claimed
in this appeal that, similar to a landlord’s lack of knowledge
regarding whether a tenant is elderly or disabled, a landlord may
lack knowledge regarding whether certain “Eligible Tenants,”
including children, live in the rental accommodations. The
current section 37.9A(e)(4) provides a simple mechanism that
provides tenants with information regarding the full scope of the
right to relocation assistance payments under section 37.9A,
subdivision (e)(1), (2), or (3); enables tenants to claim entitlement
to the relocation assistance benefits that must be paid on behalf
29
of each “Eligible Tenant”; and does not impermissibly burden
landlords. (§ 37.9A, subd. (e)(3)(A)–(C).)12
Plaintiffs’ termination notice did not fully comply with the
notice requirement at issue. “The right to receive payment”
under section 37.9A, subdivision (e)(3) includes the right to
payment of “a relocation benefit on behalf of each authorized
occupant of the rental unit regardless of the occupant’s age
(‘Eligible Tenant’)[,]” and to additional payments for elderly or
disabled Eligible Tenants. (§ 37.9A, subd. (e)(3)(A), (C).)
Plaintiffs’ termination notice stated on page one, “You have
rights and obligations under [Rent Ordinance] § 37.9A, including,
but not limited to, the right to renew the tenancy if proper
notification is given within 30 days after vacating the unit, and
entitlement to certain relocation payments as described in more
12 The ordinance speaks to relocation payments that are
“paid to the tenants.” (§ 37.9A, subd. (e)(3) [“Where a landlord
seeks eviction based upon Section 37.9(a)(13), and the notice of
intent to withdraw rental units is filed with the Board on or after
February 20, 2005, relocation payments shall be paid to the
tenants as follows . . . .”].) Although at first blush it may seem
confusing for section 37.9A(e)(3) to use the term “tenants” in this
clause—shortly before using the defined term “Eligible Tenant”
later within the same section—this use of the term “tenants”
makes sense when one considers that, under the Rent Ordinance,
“tenants” would receive payments on behalf of all “Eligible
Tenants,” the latter term being one that would include an
occupant who is a child. It would make little sense to require a
landlord to make a payment directly to an infant (who would
qualify as an “Eligible Tenant”), for example, but it would be
perfectly sensible to require a landlord to make a payment to a
tenant, such as the leaseholder in the unit or an approved
subtenant (§ 37.2, subd. (t)), on behalf of that infant.
30
detail below. A true and correct copy of [Rent Ordinance section]
37.9A is attached hereto as Exhibit A and incorporated herein by
reference. You are hereby notified of your rights as set forth in
Exhibit A.” (Italics added.) Then, at the promised more detailed
description of relocation assistance payments on page five, the
termination notice stated, “You have rights to relocation
assistance payments as follows[:]” and thereafter stated that
“each tenant” was entitled to a relocation assistance payment, if
there were more than three “tenants,” a capped payment would
be divided equally between tenants, and any “tenant” who was
elderly or disabled was entitled to a supplemental payment. But
that explanation was not complete. Although plaintiffs also
attached an accurate copy of section 37.9A to the termination
notice, in doing so, they provided inconsistent information with
no explanation regarding the discrepancy.13 We cannot conclude
that a tenant would reasonably understand that Exhibit A, and
not the language within the termination notice itself, in fact
provided the accurate information. Plaintiffs thus did not fully
comply with their obligation to notify defendants of the right to
receive relocation assistance payments as required by section
37.9A(e)(4).
Even if the doctrine of substantial compliance were
potentially applicable, unlike our dissenting colleague, we would
still find plaintiffs’ notice deficient. “ ‘The doctrine of substantial
compliance does not allow an excuse to literal noncompliance in
13The attached Section 37.9A is nine pages long, and
subdivision (e)(3) appears at pages three and four.
31
every situation. [Citation.] It “excuses literal noncompliance
only when there has been ‘actual compliance in respect to the
substance essential to every reasonable objective of the
statute.’ ” ’ ” (Andrews v. Metropolitan Transportation Authority
(2022) 74 Cal.App.5th 597, 607 (Andrews).)
Here, there was not actual compliance in respect to the
substance of every reasonable objective of section 37.9A(e)(4).
One purpose of the notice requirement is to provide tenants
subject to evictions under the Act information regarding the full
scope of the right to relocation assistance benefits. This serves to
ensure that each tenant has the information needed to
understand what payment is due (to all “Eligible Tenants”) where
the tenant may be in the best position to ascertain what payment
is due. Given the termination notice’s omission of clear
information regarding the landlord’s obligation to provide a
relocation payment on behalf of “each authorized
occupant . . . regardless of the occupant’s age” and the obligation
to provide additional benefits where such persons are disabled or
elderly, the landlord failed to satisfy the Rent Ordinance’s goal of
ensuring that tenants receive clear information regarding the full
scope of the right to relocation assistance benefits.
Plaintiffs’ notice also failed to satisfy another objective of
section 37.9(e)(4). Analogizing to California’s first comprehensive
anti-rent gauging and eviction control law, the Tenant Protection
Act of 2019 (Assem. Bill No. 1482 (2019–2020 Reg. Sess.)), we
believe the notice requirement at issue also serves to protect
against abusive evictions in that it acts as a partial deterrent to a
32
landlord’s disingenuous use of the right to evict under the Act to
evade the City’s rent control law. Our Legislature has recognized
that requiring relocation assistance payments in non-fault
evictions under the Tenant Protection Act of 2019 serves to deter
abusive non-fault evictions. (Sen. Com. on Judiciary, Analysis of
Assem. Bill 1482, as amended June 28, 2019, p. 9 [TPA relocation
assistance payment requirements for non-fault evictions act as at
least a partial deterrent to a landlord making an end run around
the TPA’s rent caps].)14 As under the TPA, a landlord is less
likely to disingenuously invoke the Act as a just cause for eviction
under the Rent Ordinance if the landlord must pay relocation
assistance benefits, and a maximal deterrent purpose is further
served if the landlord must provide tenants with information
regarding the full scope of the right to relocation assistance
payments, which will enable them to claim the largest available
relocation assistance payment in all circumstances. Because it
did not fully and accurately apprise defendants of the entirety of
“the right to receive payment” encompassed within section 37.9A,
14 Where a local jurisdiction enacted a just cause eviction
ordinance on or before September 1, 2019, or where a local
jurisdiction enacted or amended a just cause eviction ordinance
after September 1, 2019, and that ordinance is more protective
than the TPA, including where the local ordinance provides for
higher relocation assistance payments than the TPA, the local
ordinance remains operative over the TPA. (Civ. Code, § 1946.2,
subd. (g)(1)(A), (B).) We agree with the parties that the TPA is
not directly applicable here because the Rent Ordinance provides
higher relocation assistance payments than the TPA.
33
subdivision (e)(3), plaintiffs’ termination notice does not comply
with this objective.15
Our dissenting colleague rejects this analysis, saying that
the defendants received “precisely, completely, and
understandably all of the information required by the ordinance.”
(Dis. opn. post, at p. 1.) Although the dissent concedes that the
notice would have been “incomplete and misleading” if the
plaintiffs had provided it in a situation where the unit was also
occupied by a child or other authorized occupant, our colleague
nonetheless contends that the notice here was fully compliant
because “it is undisputed that no one other than the two adult
defendants occupied the premises, and as to them the notice was
absolutely, and literally, accurate.” (Dis. opn. post, at pp. 2–3,
italics added.)
In our view, one problem with this reasoning is that section
37.9A(e)(4) requires the landlord to give notice of “the right to
receive payment under this subsection 37.9A(e)(1) or (2) or (3).”
(§ 37.9A(e)(4), italics added.) The Ordinance does not require the
landlord to provide tenants notice of their right to receive
payment—i.e., notice tailored to what the landlords subjectively
believe their specific tenants are entitled to under one of the
specified subsections. The reason for this “the/their” distinction
is becomes apparent when one unpacks our dissenting colleague’s
hypothetical: If, as here, a landlord presumes to notify a tenant
of the payment amount to which the landlord believes the tenant
15We deny each of plaintiffs’ requests for judicial notice as
irrelevant.
34
is entitled, but the landlord is wrong (because the tenant has a
child, unbeknownst to the landlord, for example), the shorted
tenant would have no way of knowing that the stated payment
amount was deficient in a case where the notice of the right to a
relocation benefit is, as here, tailored to that specific tenant—
because, obviously, when the notice is tailored to a specific
tenant, it would invariably match the landlord’s calculation of
that specific tenant’s presumed payment amount. In a situation
where the landlord notifies a tenant of the presumed payment
amount (which is no longer required under Johnson), only by the
landlord accurately notifying a tenant of the entire scope of “the
right to receive payment under this subsection 37.9A(e)(1) or (2)
or (3)” can tenants be fully apprised of the information necessary
to confirm whether the landlord’s assessment of the relocation
benefit amount is in fact accurate. Put another way, where the
Ordinance requires the landlord to notify tenants of “the right to
receive payment” as set forth under the Ordinance (by the simple
expedient of quoting the language of the relevant subsections,
including the definition of “Eligible Tenant”), that requirement
cannot be satisfied by a notice, the accuracy of which varies
depending on the identity of the recipient.
Accordingly, we affirm the trial court’s sustaining of the
demurrer.
VI. Leave to Amend
“ ‘If the court sustained the demurrer without leave to
amend, as here, we must decide whether there is a reasonable
possibility the plaintiff could cure the defect with an amendment.
35
[Citation.] If we find that an amendment could cure the defect,
we conclude that the trial court abused its discretion and we
reverse; if not, no abuse of discretion has occurred. [Citation.]
The plaintiff has the burden of proving that an amendment
would cure the defect.’ ” (Perlas v. GMAC Mortgage, LLC (2010)
187 Cal.App.4th 429, 433.)
Plaintiffs seek to amend their compliant to assert a claim
for ejectment, but they have not established entitlement to leave
to amend. The essential elements of an ejectment action are (1)
the plaintiff’s valid interest in the property and (2) the
defendant’s wrongful possession and withholding thereof. (Payne
& Dewey v. Treadwell (1860) 16 Cal. 221, 243; Baugh v.
Consumers Associates, Ltd. (1966) 241 Cal.App.2d 672, 675,
superseded by statute on other grounds as noted in WDT–
Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.) Plaintiffs
claim they could amend their complaint to assert a viable claim
for ejectment, but they do not discuss the required elements or
show how they could be met. Specifically, plaintiffs do not
explain how they could maintain an action for ejectment when
the defendants are not in “wrongful possession” of plaintiffs’
property due to plaintiffs’ failure to satisfy the notice
requirement of section 37.9(e)(4).
DISPOSITION
The judgment is affirmed.
BROWN, J.
36
WE CONCUR:
NADLER, J.
2710 Sutter Ventures, LLC, et al. v. Millis et al. (A162439)

Judge of the Superior Court of California, County of
Sonoma, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
37
POLLAK, P.J., dissenting
I concur unreservedly with the analysis and conclusions in sections I
through IV of the Discussion in the majority opinion. I agree that the Ellis
Act does not preempt section 37.9A(e)(4) (section 37.9A(e)(4)) of the San
Francisco Administrative Code (Rent Ordinance)1, and that the landlord’s
failure to comply with section 37.9A, subdivision (e)(3) or (e)(4) is a valid
defense to an unlawful detainer action based on the landlord’s removal of the
premises from the rental market. However, I strongly disagree with the
conclusion in section V (maj. opn., ante) that the plaintiffs here did not
comply with section 37.9A(e)(4). To the contrary, whether the standard is
strict or substantial compliance, plaintiffs’ notice gave the tenants precisely,
completely, and understandably all of the information required by the
ordinance. The majority’s conclusion that this was not adequate, in my view,
injects into the ordinance an interpretation not only unfair and unreasonable
under the present circumstances, but sure to cause mischief in the future.
The termination notice in this case told the tenants, on page 1, “You
have rights and obligations under § 37.9A, including . . . entitlement to
certain relocation payments as described in more detail below.” (Italics
added.) Then, on page 5, “You have rights to relocation assistance payments
as follows: [¶] Each tenant of the premises shall be entitled to receive
$6,985.23, one-half of which shall be paid at the time of the service of the
notice of termination of tenancy, and one-half of which shall be paid when the
tenant vacates the unit. . . . [I]f any tenant is disabled within the meaning of
1An amended version of section 37.9A of the Rent Ordinance was
enacted after oral argument in this case and became effective on July 18,
2022. (Ord. No. 91-22.) All subsequent unspecified section references in this
opinion are to the section 37.9A of the Rent Ordinance effective prior to July
18, 2022.
1
Section 12955.3 of the California Government Code, such tenant shall be
entitled to receive an additional supplemental payment of $4,656.81, one-half
of which shall be paid within fifteen (15) calendar days of the landlord’s
receipt of written notice from the tenant of entitlement to the supplemental
relocation payment, and one-half of which shall be paid when the tenant
vacates the unit.”2 (Italics added.) There is no dispute that two adult tenants
occupied the premises,3 that the stated dollar amounts were calculated
correctly, and that each of the two tenants was paid and accepted one-half
the amounts due when the notice was served and following advisement of
their asserted disability. Unquestionably, the tenants were correctly told
what they were entitled to receive as relocation payments. In addition, the
notice included, as Exhibit A, a complete copy of the current version of the
Rent Ordinance, with the admonishment, “You are hereby notified of your
rights as set forth in Exhibit A.” (Italics added.)
The majority deems this indisputably accurate information inadequate
because the notice refers to a “tenant” rather than to an “Eligible Tenant” as
then defined to include children and other authorized occupants of the
premises. Granted that if the premises had been occupied by a child or
another authorized tenant, the reference to a “tenant” being entitled to a
relocation payment would have been incomplete and misleading. But at this
stage of the litigation, it is undisputed that no one other than the two adult
2 As appears in the full text of the notice, quoted in the majority opinion
(maj. opn. ante, pp. 4–5), the notice also stated the amount of payments that
would be due if more than three tenants occupied a unit.
3 While this fact has not yet been conclusively established, it is
consistent with the pleadings, a declaration on file, and the briefing, and
there is no contrary suggestion in the record. Should the facts differ, the
defense would appropriately be asserted in the answer to the complaint.
2
defendants occupied the premises, and, as to them, the notice was absolutely,
and literally, accurate.
Moreover, the statements in the notice were directed to “you,” the
recipients of the notice, as to whom they were accurate. Other than with
respect to the possibility of multiple tenants, the notice did not purport to
advise the defendants of the rights of others. There is obviously no reason for
the notice to have done so, and the notice could not reasonably have been
understood to do so.
Nor is there any requirement that the notice do so. Section 37.9A,
which imposes the applicable requirement, provides, “Any notice to quit
pursuant to Section 37.9(a)(13) shall notify the tenant or tenants concerned of
the right to receive payment under Subsections 37.9A(e)(1) or (2) or (3) and
the amount of payment which the landlord believes to be due.” The majority
opinion’s implication that this provision requires the notice to state “the right
to receive payment” of persons other than the person being evicted is
unfounded and non-sensical. The provision necessarily refers only to the
rights of the recipient of the notice because the “amount of payment which
the landlord believes to be due” can only be the payment that is believed due
to that tenant. The landlord obviously is not required to advise a tenant who
is being evicted what rights other hypothetical occupants would have if they
were being evicted.
Thus, the notice defendants received was in full, or “strict,” compliance
with the statute and the Rent Ordinance. Moreover, even if the reference to
“tenant” rather than “Eligible Tenant” were considered to negate “strict”
compliance, there unquestionably was substantial compliance sufficient to
overcome any objection to the form of the notice. “ ‘Substantial compliance, as
the phrase is used in the decisions, means actual compliance in respect to the
3
substance essential to every reasonable objective of the statute.’ [citation.]
Where there is compliance as to all matters of substance technical deviations
are not to be given the stature of noncompliance.” (St. Mary v. Superior Court
(2014) 223 Cal.App.4th 762,779.) While strict compliance with many
conditions is necessary to enforce summary eviction, the conditions to which
this standard has been applied are conditions failure to comply with which
defeats the purpose of the statute. (E.g., Dr. Leevil, LLC v. Westlake Health
Care Center (2018) 6 Cal.5th 474, 480–482; Lamey v. Masciotra (1969)
273 Cal.App.2d 709, 713–714.) The purpose of section 37.9,
subdivision (a)(13) is to ensure that a tenant faced with an Ellis Act eviction
is timely advised of the relocation benefits which he or she must receive if
lawfully obligated to vacate the premises. The notice given in this case
complied with that purpose in full. There is absolutely no reason to disregard
the substance of the notice because of the inconsequential reference to a
“tenant” rather than to an “Eligible Tenant.”
Therefore, I would reverse the judgment.
POLLAK, P.J.
4
Trial Court: San Francisco City & County Superior Court
Trial Judge: Hon. Vedica Puri
Counsel:
Dowling & Marquez LLP, Curtis F. Dowling, Jak. S. Marquez for Plaintiffs
and Appellants.
Fried & Williams LLP, Clifford E. Fried as Amicus Curiae on behalf of
Plaintiffs and Appellants.
Stephen L. Collier for Defendants and Respondents.