S.F. Apartment Assn. v. City & County of S.F. ( 2024 )

Filed 9/11/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
SAN FRANCISCO APARTMENT
ASSOCIATION et al.,
Plaintiffs and Appellants,
A166228
v.
CITY AND COUNTY OF SAN (San Francisco Super. Ct.
FRANCISCO, No. CPF-22-517718)
Defendant and Appellant.
SAN FRANCISCO APARTMENT
ASSOCIATION et al.,
A166359
Plaintiffs and Appellants,
v. (San Francisco Super. Ct.
No. CPF-22-517718)
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant and Respondent.
In 2022, the San Francisco Board of Supervisors (Board) passed an
ordinance that created a longer notice timeline for landlords pursuing at-
fault evictions. Plaintiffs San Francisco Apartment Association and Small
Property Owners of San Francisco Institute sought a writ of mandate
enjoining defendant City and County of San Francisco from enforcing the
ordinance as preempted by state law. The trial court granted the petition in
part, concluding that the ordinance was preempted only to the extent it
changed the notice timeline for one type of at-fault eviction: nonpayment of
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rent. Plaintiffs and defendant each appealed. We affirm in part and reverse
in part, concluding that the entire ordinance is preempted by state law.
BACKGROUND
A. Unlawful Detainer Statutes
Code of Civil Procedure sections 1159 to 1179a,1 collectively known as
the Unlawful Detainer Act, govern “the procedure for landlords and tenants
to resolve disputes about who has the right to possess real property.” (Stancil
v. Superior Court (2021) 11 Cal.5th 381, 394 (Stancil).) An action for
unlawful detainer is a summary proceeding. (Barela v. Superior Court (1981)
30 Cal.3d 244, 249.) “Given society’s interest in swiftly resolving the balance
between a tenant’s right to enjoy leased real property without disturbance
and a landlord’s right to ownership income, unlawful detainer actions
advance quickly—and the relevant statutes impose shorter procedural
timelines than the ones governing other civil actions.” (Stancil, at p. 390.)
“These proceedings are limited in scope and demand strict adherence to the
statutes’ procedural requirements.” (Ibid.)
Section 1161 describes the circumstances under which a tenant is
guilty of unlawful detainer and may be evicted, including nonpayment of
rent, breach of a material term of the lease or agreement, nuisance, and use
of the premises for illegal purpose. (§ 1161, subds. (2)–(4); Stancil, supra,
11 Cal.5th at p. 395.) Before filing a complaint for unlawful detainer based
on nonpayment of rent, a landlord must provide the tenant with a three-day
notice to pay rent or quit. (§ 1161, subd. (2).) For unlawful detainer based on
breach of a material term of the lease or agreement, a landlord must provide
the tenant with a three-day notice requiring performance of those conditions
1 Further undesignated statutory references are to the Code of Civil
Procedure unless otherwise indicated.
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to save the lease or agreement from forfeiture. (Id., subd. (3).) For unlawful
detainer based on nuisance or use of the premises for illegal purpose, a
landlord must provide the tenant with a three-day notice to quit. (Id.,
subd. (4).)
B. San Francisco Rent Ordinance
In 1979, the Board enacted a “comprehensive rental-housing ordinance”
in chapter 37 of the San Francisco Administrative Code.2 (Danekas v. San
Francisco Residential Rent Stabilization and Arbitration Bd. (2001) 95
Cal.App.4th 638, 641.) The Rent Ordinance was “necessitated by what the
Board of Supervisors perceived as a housing crisis in the City and County of
San Francisco.” (Golden Gateway Center v. San Francisco Residential Rent
Stabilization & Arbitration Bd. (1999) 73 Cal.App.4th 1204, 1211.) “The
crisis was caused by uncontrolled rent increases which had the effect of either
displacing tenants who could not pay increased rents or forcing tenants to
expend less on other of life’s necessities in order to pay increased rents.”
(Ibid.) “The essential purpose of the ordinance was to regulate rents, so that
tenants would not be subjected to excessive rent increases.” (Ibid.)
The Rent Ordinance also includes restrictions on the grounds for
eviction. San Francisco Administrative Code section 37.9, subdivision (a)
recognizes various “just cause” requirements for which a landlord may
recover possession of a rental unit. The first six grounds relate to situations
where a tenant is at fault: (1) nonpayment of rent; (2) substantial breach of
lease or agreement and failure to cure after written notice; (3) severe,
continuing nuisance or damage that is specifically stated in writing;
2 The applicable provisions of the San Francisco Administrative Code
are referred to as the San Francisco Residential Rent Stabilization and
Arbitration Ordinance (Rent Ordinance) (codified as S.F. Admin. Code,
ch. 37).
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(4) illegal use of rental unit, except where illegality is lack of authorization
for residential occupancy or a first violation of Rent Ordinance provisions
regarding tourist and transient use cured after written notice; (5) tenant
refusal to execute written extension or renewal of lease or agreement after
written request or demand; and (6) tenant refusal, after written notice, to
allow landlord access to rental unit.
As of 2021, San Francisco Administrative Code section 37.9,
subdivision (c) required that landlords should not seek to recover possession
of a rental unit under these six grounds unless “the landlord informs the
tenant in writing on or before the date upon which notice to vacate is given of
the grounds under which possession is sought.”
C. Ordinance No. 18-22
In February 2022, the Board passed Ordinance No. 18-22 that amended
portions of the Rent Ordinance. The “Purpose and Findings” section of
Ordinance No. 18-22 stated: “The Rent Ordinance recognizes that tenants
owe certain obligations to their landlords, and that a tenant’s failure to meet
those obligations may under certain conditions give the landlord just cause to
evict. But the Rent Ordinance generally does not specify for how long a
tenant’s misconduct must continue before it rises to the level of being a just
cause. This ambiguity creates confusion, and is particularly harmful to
tenants, as some landlords claim that a tenant’s violation instantly creates
just cause to evict even if the tenant just made an innocent mistake or is able
to correct the issue. A cure period would reduce the undue hardship suffered
by tenants who face sudden evictions and promote economy in the use of
judicial resources, while still protecting the property owners by curing the
harm. It is essential to provide clarity around what constitutes just cause: if
a tenant can correct the violation within a reasonable timeframe, to
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nevertheless evict the tenant and put them at risk of permanent
displacement from the City is not appropriate.”
Ordinance No. 18-22 amended San Francisco Administrative Code
section 37.9 of the Rent Ordinance in two respects. First, it amended section
37.9, subdivision (c) to provide that for notices to vacate under the first six
“just cause” requirements for evictions where a tenant is at fault, a landlord
“shall prior to serving the notice to vacate provide the tenant a written
warning and an opportunity to cure as set forth in Section 37.9(o).” Second, it
added section 37.9, subdivision (o) to provide that these six grounds for
eviction “shall not apply unless the violation is not cured within ten days
after the landlord has provided the tenant a written warning that describes
the alleged violation and informs the tenant that a failure to correct such
violation within ten days may result in the initiation of eviction proceedings.”
Ordinance No. 18-22 became effective on March 14, 2022.
D. Petition for Writ of Mandate
On March 21, 2022, plaintiffs sought a writ of mandate enjoining
defendant from enforcing Ordinance No. 18-22. Plaintiffs argued that
Ordinance No. 18-22 conflicted with, and thus was preempted by, state law.
Pursuant to section Code of Civil Procedure section 1161, landlords were
entitled to serve a three-day notice to pay/perform or quit and then invoke
their unlawful detainer remedy. Plaintiffs argued that Ordinance No. 18-22
created an impermissible conflict because it gave tenants an additional 10-
day notice and cure period.
E. Judgment
The trial court granted the petition in part. It found that “to the extent
it creates a longer period to cure or quit for non-payment of rent, Ordinance
No. 18-22 is in direct conflict with Code of Civil Procedure section 1161, and
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is thereby preempted by state law as it applies to notices for non-payment of
rent only.” But it found “a split of authority as to the allowable notice periods
for notices other than for the non-payment of rent.”
The trial court explained that Tri County Apartment Association v. City
of Mountain View (1987) 196 Cal.App.3d 1283 (Tri County) “supports the
invalidation of any extended notice period involving fault-based evictions.” In
Rental Housing Association of Northern Alameda County v. City of Oakland
(2009) 171 Cal.App.4th 741 (Rental Housing), however, the appellate court
“permitted Oakland to interpose an additional, extended notice period for
cases involving substantial violation of a material term of the tenancy,
disorderly conduct, or refusal to allow the landlord access to the unit.” The
trial court determined that it was bound by Rental Housing and thus limited
the issuance of the writ to notices for non-payment of rent only. It concluded:
“Petitioners will have to look to the higher courts if they wish to resolve the
conflict between Tri County and Rental Housing.”
Plaintiffs and defendant each filed a timely notice of appeal.
DISCUSSION
The sole legal question presented in this appeal is whether Ordinance
No. 18-22 is preempted by Code of Civil Procedure section 1161. “ ‘ “The issue
of preemption of a municipal ordinance by state law presents a question of
law, subject to de novo review.” ’ ” (Coyne v. City and County of San
Francisco (2017) 9 Cal.App.5th 1215, 1224.) We begin with general principles
regarding preemption.
I. General Preemption Principles
“In California, preemption of local legislation by state law is a
constitutional principle.” (Sequoia Park Associates v. County of Sonoma
(2009) 176 Cal.App.4th 1270, 1277.) Article XI, section 7 of the California
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Constitution provides that a county or city “may make and enforce within its
limits all local, police, sanitary, and other ordinances and regulations not in
conflict with general laws.” But “ ‘ “[i]f otherwise valid local legislation
conflicts with state law, it is preempted by such law and is void.” ’ ”
(O’Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1067.)
“ ‘A conflict exists if the local legislation “ ‘duplicates, contradicts, or
enters an area fully occupied by general law, either expressly or by legislative
implication.’ ” ’ ” (Sherwin–Williams Co. v. City of Los Angeles (1993)
4 Cal.4th 893, 897 (Sherwin–Williams).) Here, plaintiffs claim that there is
conflict through either (1) contradiction or (2) implied field preemption.
Local legislation “is ‘contradictory’ to general law when it is inimical
thereto.” (Sherwin–Williams, supra, 4 Cal.4th at p. 898.) “The ‘contradictory
and inimical’ form of preemption does not apply unless the ordinance directly
requires what the state statute forbids or prohibits what the state enactment
demands.” (City of Riverside v. Inland Empire Patients Health & Wellness
Center, Inc. (2013) 56 Cal.4th 729, 743 (Riverside).) “Thus, no inimical
conflict will be found where it is reasonably possible to comply with both the
state and local laws.” (Ibid.)
Local legislation enters an area that is “ ‘fully occupied’ by general law”
when the Legislature has implied its intent to do so. (Sherwin–Williams,
supra, 4 Cal.4th at p. 898.) There are three “recognized indicia” of such
implied intent: “ ‘(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
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such a nature that the adverse effect of a local ordinance on the transient
citizens of the state outweighs the possible benefit to the’ locality.” (Ibid.)
The Legislature’s implied intent to occupy the field to the exclusion of
local legislation “ ‘ “is not to be measured alone by the language used but by
the whole purpose and scope of the legislative scheme.” ’ ” (O’Connell v. City
of Stockton, supra, 41 Cal.4th at p. 1068.) “ ‘ “Whenever the Legislature has
seen fit to adopt a general scheme for the regulation of a particular subject,
the entire control over whatever phases of the subject are covered by state
legislation ceases as far as local legislation is concerned.” ’ ” (Ibid.) “ ‘ “State
regulation of a subject may be so complete and detailed as to indicate an
intent to preclude local regulation.” ’ ” (Ibid.) Examination to infer
legislative intent to occupy the field is “made with the goal of ‘ “detect[ing] a
patterned approach to the subject.” ’ ” (Sequoia Park Associates v. County of
Sonoma, supra, 176 Cal.App.4th at p. 1279, quoting Fisher v. City of Berkeley
(1984) 37 Cal.3d 644, 708 (Fisher).)
With these general principles in mind, we turn to the parties’
preemption arguments.
II. Preemption Arguments
Plaintiffs argue that Ordinance No. 18-22 is preempted by state law
based on either (1) direct contradiction of Code of Civil Procedure section
1161, or (2) implied field preemption. As for direct contradiction, plaintiffs
explain that section 1161 sets out a procedural timeline for unlawful
detainer. This timeline provides tenants with three days’ notice to pay
rent/perform or quit. (§ 1161, subds. (2)–(4).) Ordinance No. 18-22, however,
extends that timeline by requiring a written warning with 10 days to cure
prior to serving any notice under section 1161. In other words, tenants have
a minimum of 13 days to cure under Ordinance No. 18-22 instead of three
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days under section 1161. As for implied field preemption, plaintiffs argue
that state statutes regarding landlord-tenant notification show the
Legislature’s intent to fully occupy the field.
To oppose these arguments, defendant relies on the framework set
forth by the California Supreme Court in Birkenfeld v. City of Berkeley (1976)
17 Cal.3d 129 (Birkenfeld). In that case, landlords challenged an initiative
amendment to Berkeley’s city charter. (Id. at p. 135.) The court addressed
“two kinds of restraint upon eviction proceedings” imposed by the
amendment. (Id. at p. 147.) First, the amendment limited “the grounds upon
which a landlord may bring an action to repossess a rent-controlled unit” to
breaches of duty by tenants (e.g., nonpayment of rent, nuisance, use for
illegal purpose, and refusal of access), good faith withdrawal from the rental
market, or tenant refusal to execute renewal of lease. (Ibid.) Second, the
amendment required that a landlord “obtain a certificate of eviction from the
rent control board before seeking such repossession.” (Ibid.) The landlords
argued that both restraints were preempted by state law. (Id. at p. 148.)
As for the limitations on the grounds for eviction, the landlords argued
that they conflicted with section 1161, subdivision (1), which provides that a
landlord may pursue an unlawful detainer action where a tenant continues in
possession after expiration of the rental term. (Birkenfeld, supra, 17 Cal.3d
at p. 148.) The California Supreme Court explained that these provisions are
“not necessarily in conflict” if the purpose of the state statute is “sufficiently
distinct” from that of the local legislation. (Id. at p. 149.) The court
determined that the purpose of unlawful detainer statutes, including
section 1161, is “procedural.” (Birkenfeld, at p. 149.) These statutes
“implement the landlord’s property rights by permitting him to recover
possession once the consensual basis for the tenant’s occupancy is at an end.”
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(Ibid.) The amendment, in contrast, eliminated particular grounds for
eviction, “giving rise to a substantive ground of defense in unlawful detainer
proceedings.” (Ibid., italics added.) The court reasoned that the city’s
exercise of its police power to create such a defense “does not bring it into
conflict with the state’s statutory scheme.” (Ibid.) For example, tenants may
raise other substantive defenses (like a landlord’s breach of the warranty of
habitability) in an unlawful detainer action for nonpayment of rent. (Ibid.)
Accordingly, the court concluded that remedies under the unlawful detainer
statutory scheme “do not preclude a defense based on municipal rent control
legislation enacted pursuant to the police power imposing rent ceilings and
limiting the grounds for eviction for the purpose of enforcing those rent
ceilings.” (Ibid.)
As for the certificate of eviction, however, the process to obtain such a
certificate from the rent control board before unlawful detainer proceedings
could commence required a different conclusion. (Birkenfeld, supra, 17
Cal.3d at p. 150.) Before issuing that certificate, the board must provide
notice to the tenant, who then has five days to request a hearing. (Ibid.) If
the tenant requests such a hearing, it must be scheduled within seven days,
and the board must make a decision five days after the hearing. (Ibid.) A
tenant (or landlord) may also seek judicial review of the decision. (Ibid.)
Birkenfeld determined that this certificate requirement was preempted
by the unlawful detainer statutes that provide “a summary procedure for
exercising their rights of repossession against tenants.” (Birkenfeld, supra,
17 Cal.3d at p. 151.) The court explained: “Unlike the limitations imposed
by the charter amendment upon chargeable rents and upon the grounds for
eviction, which can affect summary repossession proceedings only by making
substantive defenses available to the tenant, the requirement of a certificate
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of eviction raises procedural barriers between the landlord and the judicial
proceeding.” (Ibid., italics added.) The court reasoned that, unlike a
substantive defense to eviction, landlords could not “meet the defense” by
showing that they could have qualified for the certificate had they applied for
it. (Ibid.) Instead, the certificate requirement would “preclude” a landlord
from relief in summary repossession proceedings altogether. (Ibid.)
Birkenfeld thus concluded that the certificate requirement “cannot stand in
the face of state statutes that fully occupy the field of landlord’s possessory
remedies.” (Id. at p. 152.)
Here, the parties disagree about where Ordinance No. 18-22 falls in the
procedural-substantive framework from Birkenfeld. Plaintiffs argue that the
ordinance is procedural because it extends the notice timeline from Code of
Civil Procedure section 1161. Defendant, on the other hand, argues that the
ordinance is substantive because it limits the grounds for eviction as an
appropriate exercise of the city’s police power and therefore is not in conflict
with section 1161. As set forth below, we agree with plaintiffs.
III. Ordinance No. 18-22 is Procedural
We begin our Birkenfeld analysis with the well-recognized principle
that “ ‘the distinction between procedure and substantive law can be
“ ‘shadowy and difficult to draw’ in practice.” ’ ” (San Francisco Apartment
Assn. v. City and County of San Francisco (2018) 20 Cal.App.5th 510, 516
(Educators).) Indeed, it has been described as “elusive at best.” (Id. at
p. 516, fn. 2, citing Hambrecht & Quist Venture Partners v. American Medical
Internat., Inc. (1995) 38 Cal.App.4th 1532, 1542 [noting substance-procedure
terminology “is problematic because those labels are difficult to apply as
mutually exclusive categories”]; People v. Flaherty (1990) 223 Cal.App.3d
1139, 1143 [“The determination whether a given law makes a procedural or
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substantive change can be difficult”]; 3 Witkin, Cal. Procedure (5th ed. 2008)
Actions, § 45 [describing “the difficult and controversial preliminary
determination whether the matter is one of procedure or substance”].)
Law is not necessarily procedural or substantive because it “ ‘takes a
seemingly procedural [or substantive] form.’ ” (In re Jackson (1985) 39 Cal.3d
464, 471.) The classification is difficult to draw in the real world because law
can be substantive but still have a “procedural impact.” (Educators, supra,
20 Cal.App.5th at p. 518.) As the United States Supreme Court has
explained, “Except at the extremes, the terms ‘substance’ and ‘procedure’
precisely define very little except a dichotomy.” (Sun Oil Co. v. Wortman
(1988) 486 U.S. 717, 726.) Moreover, while Birkenfeld focused on purpose of
the state statute versus the local regulation, the California Supreme Court
has cautioned that “Purpose alone is not a basis for concluding a local
measure is preempted.” (California Grocers Assn. v. City of Los Angeles
(2011) 52 Cal.4th 177, 190.) An ordinance’s purpose may be relevant to
whether it is preempted by state law, but such consideration must be done
“in the context of a nuanced inquiry” into “whether the effect of the local
ordinance is in fact to regulate in the very field the state has reserved to
itself.” (Ibid., italics added.)
To determine whether Ordinance No. 18-22 is procedural or
substantive, we look to the familiar canons of construction and exercise our
independent judgment. (Berkeley Hills Watershed Coalition v. City of
Berkeley (2019) 31 Cal.App.5th 880, 896.) That process may involve up to
three steps. (MacIsaac v. Waste Management Collection & Recycling, Inc.
(2005) 134 Cal.App.4th 1076, 1082.) First, we begin with the words of the
ordinance themselves as “chosen language is the most reliable indicator of its
intent.” (Ibid.) “If the statutory language is clear and unambiguous, our task
12
is at an end, for there is no need for judicial construction.” (Id. at p. 1083.)
When the plain meaning of the text does not resolve the question, we proceed
to the second step and turn to maxims of construction and extrinsic aids,
including legislative history materials. (Ibid.) If ambiguity remains, we
“must cautiously take the third and final step” and “apply ‘reason,
practicality, and common sense to the language at hand.’ ” (Id. at p. 1084.)
A. Language of Ordinance
We read the express language of Ordinance No. 18-22 to contain at
least some ambiguity. As detailed above, the text in the “Purpose and
Findings” section indicates that the ordinance is aimed at the timing of
eviction and thus may be procedural in nature. It states there is some
“confusion” regarding how long tenant misconduct must continue before a
landlord can initiate unlawful detainer proceedings to recover possession of a
rental unit. It also appears to suggest that tenants should be given a
“reasonable” amount of time where they have made an “innocent mistake” or
are “able to correct the issue.”
The text of the ordinance adding San Francisco Administrative Code
section 37.9, subdivision (o), however, is framed differently. It states that the
six grounds for at-fault evictions “shall not apply” unless tenants have been
provided the additional warning and 10-day cure period. As defendant
suggests, this language may be interpreted as regulating the substantive
grounds for eviction.
We find Birkenfeld’s reasoning instructive in resolving this ambiguity.
In Birkenfeld, the court analogized the Berkeley amendment’s limitations on
the grounds for eviction to the “substantive” defense in unlawful detainer
proceedings of the breach of the implied warranty of habitability.
(Birkenfeld, supra, 17 Cal.3d at p. 151.) Presumably, landlords could defeat
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such a defense if they could show no breach had occurred. The eviction
certificate requirement, however, raised a “procedural barrier” for landlords
that precluded relief altogether. (Birkenfeld, at p. 151.) Landlords had no
ability to “meet the defense” by showing they could have qualified for the
certificate had they applied for it. (Ibid.) Similarly, here, Ordinance No. 18-
22’s supplemental 10-day notice requirement creates a barrier that precludes
relief altogether without demonstrated compliance. Landlords cannot “meet
the defense” by showing tenants would have been guilty of unlawful detainer
had they been provided with the additional 10-day warning and cure period.
(Birkenfeld, at p. 151.) The effect of Ordinance No. 18-22 is therefore
procedural.
B. Legislative History
The legislative history of Ordinance No. 18-22 shows that its purpose is
also procedural. On January 10, 2022, San Francisco Supervisor Dean
Preston introduced the ordinance at a Land Use and Transportation
Committee hearing. Supervisor Preston stated that the Board had “come
together to ban most evictions” during the COVID-19 pandemic, and it was
now “even clearer that making an eviction a last resort is beneficial for all of
us and not just a good idea during and as a response in COVID but also more
permanently for the future of our city.” He then explained: “Evictions really
should be a tool of last resort and all too often, three days really flies by and
tenants are in a position where they could have come up with rent money or
otherwise solved the dispute with the landlord but they simply don’t have
enough time to access the resources and help they need.” Supervisor Preston
described the current state statutory law in section 1161 as “very harsh,” that
landlords can “commence the eviction process just three days later, even if
the tenant comes up with the rent or cures the breach of contract on the
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fourth day.” He stated that the “additional 10 days would really be a game
changer.”
Supervisor Preston continued: “The fact is that as a society we don’t
resolve any other disputes like this. Home foreclosures, consumer debts, car
repossessions, you name it. In no other situation does someone have just
three days before losing their home or property. But for some reason, and the
reasons are probably beyond our discussion today, but for some reason our
system accepts three days as sufficient for resolving landlord-tenant disputes
that lead to people losing their homes. So, if a warning period can keep
people in their homes and resolve a pending dispute without litigation, I
think we have a moral obligation to make that happen. And that’s the
purpose of this Ordinance.” The Land Use and Transportation Committee
voted unanimously to recommend the ordinance to the Board.
At the January 25, 2022 Board meeting, Supervisor Preston largely
repeated his statements from the committee hearing. He again argued that
evictions should be a “tool of last resort.” He explained the timing under
section 1161 in more detail: “As it stands right now, a landlord can demand
rent, for example, on day one, and if a tenant can’t come up with the rent
within three days the tenant is subject to eviction. And that landlord can
even evict if the tenant comes up with the full rent on the fourth or fifth day.
And the same is true for many other types of eviction. This happens too often
and it’s just wrong.” Supervisor Preston again stated that “for some reason
our system accepts three days as sufficient for resolving landlord-tenant
disputes,” and that “ten days warning before eviction would be a game
changer.”
These statements evidence the procedural purpose of Ordinance No. 18-
22. They criticize the “system” under Code of Civil Procedure section 1161
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that “accepts three days” as sufficient notice to pay rent or perform and raise
concern that three days “really flies by” and tenants “don’t have enough time”
under the law. They explain that the additional 10 days provided for in
Ordinance No. 18-22 would be a “game changer” for tenants. For these
reasons, they explain that Ordinance No. 18-22 extends the section 1161
timeline to create a “warning period” to “keep people in their homes and
resolve a pending dispute without litigation.”
In contrast with this procedural effect and purpose, defendant relies
primarily on Educators and Rental Housing to argue that Ordinance No. 18-
22 instead regulates the substantive grounds for eviction. While both cases
“merit close examination,” they do not change our conclusion.
C. Educators and Rental Housing
In Educators, the same plaintiffs as in this action challenged an earlier
San Francisco ordinance that created a defense to certain no-fault grounds
for eviction3 “if a child under the age of 18 or any educator resides in the unit,
the child or educator is a tenant in the unit or has a custodial or family
relationship with a tenant in the unit, the tenant has resided in the unit for
12 months or more, and the effective date of the notice of termination of
tenancy falls during the school year.” (Educators, supra, 20 Cal.App.5th at
p. 513.) Plaintiffs raised the same preemption argument they make here:
the ordinance was preempted by state law governing landlord-tenant
notification procedures and timetables. (Ibid.)
3 San Francisco Administrative Code section 37.9, subdivisions (a)(8)
through (a)(12) of the Rent Ordinance provide that a landlord may recover
possession of a rental unit for owner use or occupancy as principal residence,
condominium conversion, permanent removal of rental unit from housing
use, capital improvements, or substantial rehabilitation.
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The appellate court concluded that the ordinance was not preempted
under Birkenfeld. (Educators, supra, 20 Cal.App.5th at p. 519.) It explained:
“The purpose of the Ordinance is to protect children from the disruptive
impact of moving during the school year or losing a relationship with a school
employee who moves during the school year. When tenants belong to this
protected group (or have a custodial or familial relationship with a resident
protected group member), they have a substantive defense to eviction; when
they no longer belong to the group—because the regular school year has
ended or will have ended by the effective date of the notice of termination—
they no longer have a substantive defense.” (Id. at p. 518.) The appellate
court concluded that the ordinance created a substantive defense and thus
was not preempted by the state unlawful detainer statutes. (Id. at p. 519.)
Educators recognized that, even though the ordinance was substantive
under Birkenfeld, it had a “procedural impact” by “limiting the timing of
certain evictions.” (Educators, supra, 20 Cal.App.5th at p. 518.) But the
appellate court emphasized that the ordinance did not “impose any
procedural requirements: it does not require landlords to provide written
notice or to do any other affirmative act.” (Ibid.) Instead, the procedural
impact was “necessary to ‘regulate the substantive grounds’ of the defense it
creates.” (Ibid.) Moreover, the appellate court rejected plaintiffs’ argument
that if the ordinance were upheld as substantive, “ ‘nothing would prevent
San Francisco from mandating that all for-cause terminations occur on one
day per year.’ ” (Id. at p. 519.) The court stated: “Although the issue is not
before us, an ordinance limiting the timing of all evictions would appear to be
preempted by the unlawful detainer statutes. Such an ordinance would not
be imposed in order to regulate any substantive grounds for eviction, like the
Ordinance. The Ordinance does not impose such a blanket requirement
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independent of any substantive defenses to eviction. Instead, the Ordinance
is a substantive defense with an impact on timing.” (Ibid.)
Here, unlike Educators, Ordinance No. 18-22 does not establish a
substantive defense to eviction for a protected group. Nor does it provide a
substantive defense with only an “impact” on timing but no procedural
requirement. (Educators, supra, 20 Cal.App.5th at p. 518.) Instead, its
extension of the timeline for notice and opportunity to cure is entirely
procedural. It also imposes a specific procedural requirement: landlords
must affirmatively act by providing a written warning after good cause for
eviction has been demonstrated but before notice of eviction can be given
under section 1161. As explained above, this process creates a procedural
barrier precluding relief. Moreover, while the dictum from Educators is of
course not binding (Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1120),
it also supports our procedural conclusion because Ordinance No. 18-22
creates a blanket timing barrier across all six grounds for eviction where the
tenant is at fault. It does not regulate or distinguish between any one
substantive ground.
In Rental Housing, landlords challenged an Oakland initiative adopted
in its November 2002 general election. (Rental Housing, supra,
171 Cal.App.4th at p. 749.) Prior to this initiative, Oakland’s rent control
ordinance did not have any “good cause” requirements for eviction. (Id. at
p. 750.) The addition of these requirements was “ ‘crucial to the main
purpose of the Ordinance: to prevent landlords from evicting in order to
undermine rent control.’ ” (Id. at p. 759.) Indeed, “good cause” requirements
for eviction were already in “many other cities’ rent control laws.” (Id. at
p. 750.)
18
The initiative thus imposed a cause basis for eviction, enumerating
various grounds for tenant fault similar to those already present in
San Francisco’s Rent Ordinance, including: nonpayment of rent, substantial
breach of tenancy after written notice to cease, substantial damage to
premises after written notice to cease, substantial disorderly conduct after
written notice to cease, and tenant refusal to allow landlord access to rental
unit after written notice to cease. (Rental Housing, supra, 171 Cal.App.4th at
p. 762.) And like San Francisco’s Rent Ordinance before Ordinance No. 18-22
was passed, the provision authorizing eviction based on nonpayment of rent
did not require any supplemental notice beyond Code of Civil Procedure
section 1161.
But the landlords argued that the notice requirements for the other
eviction grounds (breach of tenancy, damage, disorderly conduct, and refusal
of access) were preempted under Birkenfeld. (Rental Housing, supra, 171
Cal.App.4th at p. 762.) The appellate court disagreed, reasoning that the
notice requirements limited “a landlord’s right to initiate an eviction due to
certain tenant conduct by requiring that the specified conduct continue after
the landlord provides the tenant written notice to cease.” (Id. at pp. 762–
763.) Rental Housing thus concluded that the notice requirements “regulate
the substantive grounds for eviction, rather than the procedural remedy
available to the landlord once grounds for eviction have been established.”
(Id. at p. 763.)
For the first time on appeal, the landlords also argued that the notice
provisions were “void for vagueness” because they did not “specify the time a
tenant must be provided to cure the violation before a landlord may
commence an eviction.” (Rental Housing, supra, 171 Cal.App.4th at p. 763 &
fn. 17.) The appellate court concluded that any “arguable vagueness” had
19
been clarified by amendments to eviction regulations adopted by Oakland’s
Rent Board specifying that “a warning notice ‘must give the tenant at least 7
days after service to cure the violation.’ ” (Id. at pp. 763–764.)
We disagree with the trial court to the extent it felt Rental Housing
precluded it from finding Ordinance No. 18-22 preempted in its entirety. The
appellate court’s findings as to the Oakland initiative in Rental Housing are
based on important distinctions from the instant case. First, as a
preliminary matter, the appellate court in Rental Housing was clear that it
considered “only the text of the measure” and was presented with arguments
for the first time on appeal. (Rental Housing, supra, 171 Cal.App.4th at
p. 752.) As described above, we find not only the text but also the legislative
history of Ordinance No. 18-22 instructive in analyzing the parties’
preemption arguments raised here and in the trial court.
Second, the Oakland initiative set forth a substantive scheme by which
“a landlord must be ‘able to prove’ one of 11 specified grounds for eviction.”
(Rental Housing, supra, 171 Cal.App.4th at p. 755.) The Oakland initiative
explicitly required one of the enumerated grounds to be the landlord’s
“ ‘dominant motive for recovering possession and the landlord acts in good
faith in seeking to recover possession.’ ” (Id. at p. 759.) It further explained
the need for “good faith, honest intent, and no ulterior motive.” (Ibid.) But
importantly, only some of the grounds where a tenant is at fault contained
notice requirements. (Id. at p. 762 [citing sections 6A(2), 6A(4), 6A(5), and
6A(7) of Oakland initiative].) Nonpayment of rent, for example, had no such
requirement.
It was in this context of the Oakland initiative’s first-time
implementation of substantive “good cause” requirements that Rental
Housing considered a preemption challenge to the particular “good cause”
20
requirements that included “warning notices” to “ ‘be served by the landlord
prior to a notice to terminate tenancy.’ ” (Rental Housing, supra, 171
Cal.App.4th at p. 762.) These clearly substantive elements of the Oakland
initiative are not at issue in our consideration of Ordinance No. 18-22. As
explained above, the “good cause” grounds for eviction had been enumerated
in San Francisco Administrative Code section 37.9, subdivision (a) of the
Rent Ordinance for over 40 years before Ordinance No. 18-22 was enacted.
Moreover, Ordinance No. 18-22 imposed a “blanket” notice requirement
across all six grounds for eviction where the tenant is at fault. (Educators,
supra, 20 Cal.App.5th at p. 519.) In contrast, the appellate court in Rental
Housing was tasked with deciding whether notice requirements particular to
certain grounds of eviction regulated those grounds. (Rental Housing, at
p. 763.)
Third, unlike Ordinance No. 18-22, the notice requirements in the
Oakland initiative did not specify any particular timeline, let alone one that
intentionally extended the Code of Civil Procedure section 1161 framework.
Nor did it expressly include an extended notice requirement because it took
issue with the three-day notice standard of section 1161. Unlike Ordinance
No. 18-22, there is no indication that the Oakland initiative was proposed
because three days “really flies by” and tenants “don’t have enough time”
under the law. As a result, the only argument presented (for the first time) to
the appellate court in Rental Housing regarding the Oakland initiative’s
impact on timing challenged the vagueness of the notice provisions, which the
court reasonably rejected in view of related rent board specifications. (Rental
Housing, supra, 171 Cal.App.4th at pp. 763–764.) Therefore, the appellate
court in Rental Housing had no occasion to factor timing—or explicitly
procedural motivations—into its Birkenfeld analysis. (See Educators, supra,
21
20 Cal.App.5th at p. 518 [noting that Rental Housing “did not discuss the
impact on timing in its preemption discussion”].)
In short, unlike the ordinance in Educators, Ordinance No. 18-22 did
not add a substantive defense to eviction for a protected group without
imposing any affirmative procedural requirement on landlords. (Educators,
supra, 20 Cal.App.5th at p. 518.) Unlike the initiative in Rental Housing,
Ordinance No. 18-22 did not add substantive “good cause” grounds for
eviction with unspecified notice requirements contained in some of those
grounds. (Rental Housing, supra, 171 Cal.App.4th at p. 762.) Instead,
Ordinance No. 18-22 imposed a procedural notice requirement on landlords
and created a procedural barrier across all grounds for at-fault evictions. It
did so with the explicit purpose of adding more days to the three-day timeline
under section 1161. We thus conclude that Ordinance No. 18-22 is
procedural under Birkenfeld and return to plaintiffs’ arguments regarding
preemption by direct contradiction and implied field preemption.
IV. Ordinance No. 18-22 is Preempted
Plaintiffs argue that Ordinance No. 18-22 directly contradicts the
three-day notice period provided by Code of Civil Procedure section 1161. We
agree. The ordinance plainly prohibits a landlord from proceeding under the
state statutory timeline by requiring the additional 10-day warning and cure
period. (Riverside, supra, 56 Cal.4th at p. 743.) Defendant does not appear
to dispute this difference in timing but instead repeats its argument that
there is no conflict because, under Birkenfeld, Ordinance No. 18-22 regulates
the substantive grounds for eviction. As explained above, the text and
history of Ordinance No. 18-22 do not support this argument.
Defendant’s citations to Fisher and Foster v. Britton (2015) 242
Cal.App.4th 920 (Foster) do not alter this conclusion. In Fisher, landlords
22
challenged Berkeley’s rent control ordinance on a variety of grounds,
including that its rent withholding provisions—allowing a tenant to withhold
rent if a landlord violated rent ceilings or failed to register the rental unit—
were preempted by section 1161, subdivision (1). (Fisher, supra, 37 Cal.3d at
p. 705.) The California Supreme Court concluded that these withholding
provisions presented a permissible substantive defense to eviction and thus
did not conflict with section 1161. (Fisher, at p. 707.) Again, unlike the
additional 10 days required by Ordinance No. 18-22, landlords could
presumably “meet” this defense in Berkeley’s ordinance by showing there
were no grounds for withholding rent. (Birkenfeld, supra, 17 Cal.3d at
p. 151.)
In Foster, a landlord challenged a San Francisco regulation prohibiting
tenant evictions for violation of an obligation not included in the original
rental agreement, unless the change was authorized by the Rent Ordinance,
other law, or accepted by the tenant. (Foster, supra, 242 Cal.App.4th at
p. 925.) The appellate court rejected the landlord’s preemption argument
because the regulation affected “substantive grounds on which a landlord
may evict a tenant” and did not “interfere with the procedural protections
offered by state law.” (Id. at p. 932.) Again, unlike the regulation in Foster,
Ordinance No. 18-22 interferes with the notice procedure set forth in Code of
Civil Procedure section 1161 and is antithetical to the “relatively simple and
speedy remedy” the state unlawful detainer statutes provide. (Birkenfeld,
supra, 17 Cal.3d at p. 151.)
We also agree with plaintiffs that Ordinance No. 18-22 is impliedly
preempted as state statutory law has fully occupied the field of landlord-
tenant notification timelines. As a preliminary matter, we acknowledge the
general guidance that “ ‘courts are cautious in applying the doctrine of
23
implied preemption’ ” without clear legislative intent. (T-Mobile West LLC v.
City and County of San Francisco (2016) 3 Cal.App.5th 334, 350.) But we
disagree with defendant’s argument that there is a presumption against
preemption. “[W]hen local government regulates in an area over which it
traditionally has exercised control . . . California courts will presume, absent
a clear indication of preemptive intent from the Legislature, that such
regulation is not preempted by state statute.” (Big Creek Lumber Co. v.
County of Santa Cruz (2006) 38 Cal.4th 1139, 1149.) Defendant’s argument
assumes that Ordinance No. 18-22 is not procedural but instead regulates the
substantive grounds for eviction, an area over which local government has
traditionally exercised control under its police power. We have already
rejected this assumption.
As for the Legislature’s implied intent to fully occupy the field, we find
Tri County and Channing Properties v. City of Berkeley (1992) 11 Cal.App.4th
88 (Channing) instructive. In Tri County, landlords challenged a Santa Clara
ordinance requiring 60-day notice of any rental increase for a monthly tenant
versus the 30-day notice required by state law under section 827. (Tri
County, supra, 196 Cal.App.3d at p. 1290.) The appellate court explained
that its inquiry “must therefore determine whether the Legislature has
preempted the field of notification in landlord-tenant relationship.” (Id. at
p. 1293.)
In addition to Code of Civil Procedure section 1161, the appellate court
identified at least nine other state statutes that provide timelines for
landlord-tenant notice. (Tri County, supra, 196 Cal.App.3d at p. 1297, citing
Civ. Code, § 789 [30 days’ notice to terminate tenancy at will]; id. § 791 [three
days’ notice for re-entry]; id. § 827, subd. (a) [30 days’ notice to change terms
of lease]; id. § 1942, subd. (b) [30 days’ notice regarding tenant repairs and
24
deduction of expenses from rent]; id. § 1942.3, subd. (a)(3) [failure to correct
substandard condition after 60 days’ notice creates rebuttable presumption
against landlord in unlawful detainer action]; id. § 1942.4, subd. (a) [failure
to correct substandard condition after 35 days’ notice precludes landlord from
filing unlawful detainer action]; id. § 1942.5, subd. (a) [lessor retaliation for
lessee notice of complaint regarding tenantability precludes lessor from
recovering possession of dwelling for 180 days]; id. § 1951.3, subd. (c) [lessor
may give notice of belief of abandonment to lessee when rent has been due
and unpaid for at least 14 consecutive days]; § 1951.7, subd. (b) [notice to
lessee upon reletting of property].)
The appellate court explained that landlord-tenant relationships “are
so much affected by statutory timetables governing the parties’ respective
rights and obligations that a ‘patterned approach’ by the Legislature appears
clear” and “reveals that the timing of landlord-tenant transactions is a
matter of statewide concern not amenable to local variations.” (Tri County,
supra, 196 Cal.App.3d at pp. 1296, 1298.) Tri County determined that the
ordinance adding 30 days to the notice timeline was not like the substantive
eviction restrictions from Birkenfeld. (Tri County, at p. 1296.) Instead, it
“adopts the same purpose as the statute, i.e., appropriate notification, but
then changes the statewide chronology to suit its own agenda.” (Ibid.) Here,
as in Tri County, Ordinance No. 18-22 “adopts the same purpose” as section
1161 in setting the notification timeline but changes the three-day statewide
chronology to “suit its own agenda,” namely to provide tenants with an
additional 10 days of notice and opportunity to cure. (Tri County, at p. 1296.)
Similarly, in Channing, a landlord challenged certain provisions of the
Berkeley Municipal Code, including its requirement that landlords provide
six months’ notice before removing their property from the rental housing
25
market. (Channing, supra, 11 Cal.App.4th at p. 91.) The landlord argued
that this provision was preempted because it conflicted with the 60-day
notice requirement under state law. (Id. at p. 94.) We agreed, citing Tri
County’s determination regarding implied field preemption of landlord-tenant
notification timetables, and reasoning that Berkeley had “made no showing
that its six-month notice requirement was aimed at preventing abuse of the
right to evict tenants; on the contrary, the findings discussed above
demonstrate that the City simply wishes to afford tenants more time to locate
replacement housing before their units are withdrawn from the market.
Worthy as this goal may be, it conflicts with the notice provisions of the
[Ellis] Act, which were calculated to achieve the same purpose, and cannot be
sustained.” (Channing, at p. 97.) As in Channing, the language and history
of Ordinance No. 18-22 show it was aimed to give tenants more time before
unlawful detainer proceedings could be initiated. It achieved the same
procedural purpose regarding this notification timeline but conflicts with
section 1161 by adding to that timeline.
Defendant attempts to distinguish Tri County and Channing by
arguing that they deal with other types of landlord-tenant notification, not
notice for “ ‘a material breach of tenancy.’ ” But Tri County was explicit
about the scope of its analysis: it explained that the “time of notification, not
the amount of the [rental] increase, is the subject of the Ordinance” and the
question presented was “whether the Legislature has preempted the field of
notification in landlord-tenant relationships.” (Tri County, supra, 196
Cal.App.3d at p. 1293.) Tri County analyzed the state statutory scheme and
concluded that its patterned approach showed such intent. (Id. at p. 1298.)
Tri County and Channing determined that the local legislation impermissibly
26
interfered with that scheme by creating a longer notice timeline. (Tri County,
at p. 1298; Channing, supra, 11 Cal.App.4th at p. 97.) So too here.
In sum, the trial court did not err in concluding that Ordinance No. 18-
22 conflicts with Code of Civil Procedure section 1161 through both direct
preemption and implied field preemption. We conclude, however, that this
preemption invalidates not just the provision regarding notice for
nonpayment of rent, but the entire ordinance.
DISPOSITION
The judgment is reversed insofar as it concluded that Ordinance
No. 18-22 was not preempted by state law to the extent it changed the
required notice period for unlawful detainers/evictions based on the grounds
enumerated in San Francisco Administrative Code section 37.9,
subdivisions (a)(2) through (a)(6) of the Rent Ordinance. The judgment is
otherwise affirmed. The superior court shall issue a writ of mandate
commending defendant City and County of San Francisco to not enforce or
apply Ordinance No. 18-22. Plaintiffs San Francisco Apartment Association
and Small Property Owners of San Francisco Institute are entitled to their
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
27
_________________________
DESAUTELS, J.
We concur:
_________________________
STEWART, P.J.
_________________________
RICHMAN, J.
San Francisco Apartment Association et al. v. City and County of San
Francisco (A166228, A166359)
28
Trial Court: San Francisco Superior Court
Trial Judge: Hon. Charles F. Haines
Attorneys for Defendant
and Appellant: David Chiu
City Attorney
Wayne K. Snodgrss
Deputy City Attorney
Attorneys for Plaintiffs
and Appellants: Zacks & Freedman, PC
Andrew M. Zacks
Scott A. Freedman
Emily Lowther Brough
29