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GOLDEN GATE HOTEL ASSN. v. CITY & CTY. OF SAN FRAN

June 21, 1993

GOLDEN GATE HOTEL ASSOCIATION, Plaintiff,
v.
CITY AND COUNTY OF SAN FRANCISCO, TENDERLOIN HOUSING CLINIC, INC., NORTH OF MARKET PLANNING COALITION, and BRAD PAUL, Defendants.


VUKASIN, JR.


The opinion of the court was delivered by: J. P. VUKASIN, JR.

INTRODUCTION

 This matter same on regularly for hearing for what were, in essence, cross-motions for summary judgment. Additionally there are before the court four preliminary matters which were raised by the parties: (1) Tenderloin's request for recusal; (2) North of Market's request to certify for interlocutory appeal this Court's prior Order determining ripeness; (3) North of Market's "request" for summary judgment on the grounds that it is an improper party; and (4) Tenderloin's motion for summary judgment on the grounds that plaintiff's claim is time-barred. *fn1" After considering the file and the moving papers, and hearing oral argument, the court took the matter under submission, and now rules herewith.

 BACKGROUND

 Defendant City and County of San Francisco duly enacted the Ordinance. Defendant Brad Paul is the Director of the Mayor's Office of Housing and Community Development. (For the sake of convenience, this Order will hereinafter collectively refer to defendant brad Paul and defendant City and County of San Francisco as "San Francisco.") Defendants Tenderloin Housing Clinic, Inc. (hereinafter "Tenderloin") and North of Market Planning Coalition (hereinafter "North of Market") are non-profit advocacy groups which purport to represent individuals who have become or may become displaced when residential hotels violate the Ordinance.

 THE ORDINANCE

 The stated purpose of the Residential Hotel Ordinance is "to benefit the general public by minimizing adverse impact on the housing supply and on displaced low income, elderly, and disabled persons resulting from the loss of residential hotel units through their conversion or demolition." *fn2" To accomplish this goal, the Ordinance designates hotel rooms occupied by the same individual for 32 days or more as a "residential unit," and a "residential hotel" is any building containing a "residential unit." In order to convert a residential hotel to, for instance, a tourist hotel, the owner must obtain a permit from the city. The city will grant a permit for conversion only if the owner provides relocation assistance to hotel residents and provides for the replacement of residential hotel units being converted by one of the following ways: (1) constructing the replacement units, (2) rehabilitating other residential hotel units, (3) constructing or rehabilitating transitional emergency housing, or (4) contributing an "in lieu" fee to the city's preservation fund or a nonprofit housing group in the amount of 80 percent of the construction cost of the number of units converted, plus site acquisition costs. *fn3"

 PRELIMINARY MATTERS

 A. Tenderloin's Request for Recusal

 In its moving papers, defendant Tenderloin requests that this Court disqualify itself on the grounds that statements made by this Court at a prior hearing in another case indicate that this Court is prejudiced against the Residential Hotel Ordinance. As this Court indicated at oral argument, disqualification is inappropriate.

 First, Tenderloin's request for recusal is not properly before this Court, because: (1) Tenderloin merely included it as an informal suggestion within its motion for summary judgment, rather than as a formal noticed motion in accordance with Local Rule 220-2; and (2) Tenderloin did not properly bring the request pursuant to either 28 U.S.C. §§ 144 or 455 which require the filing in a timely fashion of affidavits stating grounds for bias or impartiality.

 Second, Tenderloin is guilty of selective reading. At the time when this Court made the so called "biased" comments, this Court specifically made the comments with the stated caveat that: "So far as this Court has been made knowledgeable of the Ordinance, so far as I know about the Ordinance as I sit here today -- this is not a final opinion or decision, but from what I have seen and heard and read about it, [and] . . . so far as the Court is familiar with it today . . . ." Reporter's Transcript at 64, June 27, 1991 hearing. It is clear from a review of the complete record that the Court's statements were not a final opinion of the Court and do not demonstrate bias.

 Therefore, Tenderloin's informal request for recusal is DENIED.

 B. North of Market's Motion for Certification

 North of Market requests that this court certify its prior order determining ripeness, dated March 12, 1992, for interlocutory appeal. 28 U.S.C. § 1292(b) provides that a district judge, in his discretion, may certify an order not otherwise appealable for interlocutory appeal if "such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." This court declines to exercise such discretion.

 First, this court is of the opinion that an immediate appeal from the prior order, at this time, will not materially advance the ultimate termination of this litigation. Before the court now are fully briefed and argued cross-motions for summary judgment. A decision by this court on the cross-motions will more materially advance this litigation, and may moot the question of interlocutory appeal altogether.

 Second, a Supreme Court case decided after this court issued its March order further supports this Court's prior Order determining that plaintiff's first cause of action is ripe. In Yee v. City of Escondido, 118 L. Ed. 2d 153, 112 S. Ct. 1522 (1992), the Supreme Court stated: "petitioners mount a facial challenge to the ordinance . . . . As [that challenge] does not depend on the extent to which petitioners are deprived of the economic use of their particular pieces of property or to the extent to which these particular petitioners are compensated, petitioners' facial challenge is ripe." 60 U.S.L.W. 4301, 4305. Likewise, plaintiff's facial challenge does not depend on the extent of compensation, and is therefore ripe.

 Accordingly, North of Market's motion for certification of the prior Order determining ripeness for interlocutory appeal is DENIED.

 C. North of Market's Claim That It Is an Improper Party

 North of Market has filed a joinder in Tenderloin's opposition to plaintiff's motion for summary judgment and in Tenderloin's motion for summary judgment. In its joinder, North of Market asserts that it is an improper party defendant, and thus is entitled to judgment as a matter of law. North of Market contends that it is only named as a defendant with respect to the causes of action for declaratory relief, which seek declarations regarding the alleged unconstitutionality of various San Francisco ordinances. North of Market contends that declaratory relief is available only against San Francisco, the governing body that enacted the challenged laws, and not against it.

 Although North of Market's arguments may seem logical at first glance, its active participation in this litigation belies its assertions that it is not a proper party to this case. North of Market has actively participated in this litigation since its inception by filing the motion to certify (discussed above), by joining in Tenderloin's second motion for summary judgment (also discussed above), by filing numerous briefs in support of the other defendants' motions and in opposition to plaintiff's motion for summary judgment, by requesting a continuance, and by participating in oral argument. Not until now, the eleventh hour, has North of Market brought this issue to the attention of the Court, and only then by way of an informal suggestion, rather than by a properly noticed motion filed and served in accordance with Local Rule 220-2. Due to North of Market's extensive participation in this case, its contention seems unmeritorious; nonetheless, this Court declines to address the merits of an argument not properly before the court.

 Therefore, North of Market's informal request for summary judgment, based on its claim to be an improper party, is DENIED.

 D. Tenderloin's Second Motion for Summary Judgment

 After the parties had fully briefed and argued the cross-motions for summary judgment, and while the motions were under submission, Tenderloin filed a second motion for summary judgment on September 11, 1992, contending that plaintiff's claims are barred by the statute of limitations. Defendants San Francisco and North of Market joined in Tenderloin's motion. Defendants assert that under De Anza Properties X, Ltd. v. Santa Cruz County, 936 F.2d 1084 (9th Cir. 1991), plaintiff must bring its facial constitutional challenge to the Ordinance under 42 U.S.C. § 1983, and such suit must be filed within one year of the enactment of the Ordinance. As plaintiff's suit was filed more than one year after enactment of the Ordinance, defendants contend that plaintiff's claim is time-barred.

 In response, plaintiff moves to strike defendants' motion, contending that defendants already had their chance to assert any affirmative defenses when filing opposition to plaintiff's motion for summary judgment and when filing their own cross-motions for summary judgment.

 Whatever the merit of defendants' statute of limitations defense, it will not now be considered by the court. It would be inappropriate for the court to consider further, unrequested briefing on a motion already briefed, argued, and submitted. In the same vein, then, it would be improper for the court, having taken one motion under submission, to consider a new motion that went to the merits of the submitted motion. At bottom here is a sense of fairness; a party should not be given a chance to rebrief one motion by filing a second motion. Defendants' second motion for summary judgment is nakedly an attempt to get another bite of the apple. This court only gives one bite. Accordingly, plaintiff's motion to strike defendants' second motion for summary judgment is hereby GRANTED.

 CROSS-MOTIONS FOR SUMMARY JUDGMENT

 I. The Standard for Summary ...


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