(Alameda County Super. Ct. No. RG03081362) Trial Judge: Steven A. Brick.
The opinion of the court was delivered by: Siggins, J.
CERTIFIED FOR PUBLICATION
A group of Oakland landlords sought a writ of mandate from the trial court to prohibit enforcement of the Oakland Just Cause for Eviction Ordinance that was adopted as initiative Measure EE at the general election in November 2002. The trial court determined that certain provisions of the measure are preempted by state law and others are not. The court also concluded that the invalid portions of Measure EE are severable from the rest of the Ordinance and the remainder of the Ordinance may be enforced. Both sides appeal.
We affirm the trial court and conclude that a portion of the Ordinance that was not challenged in the trial court is also preempted. Even in light of our determination that an additional portion of Measure EE is invalid, the remainder of the Ordinance remains enforceable.
FACTUAL AND PROCEDURAL BACKGROUND
Measure EE specifies its purpose is "to defend and nurture the stability of housing and neighborhoods in the City of Oakland by protecting tenants against arbitrary, unreasonable, discriminatory, or retaliatory evictions, thereby maintaining diversity in Oakland neighborhoods and communities while recognizing the rights of rental property owners."*fn1 It was "intended to address housing problems in the City of Oakland so as to preserve the public health, safety, and welfare, and to advance the housing policies of the City with regard to low and fixed income persons, people of color, students, and those needing special protections, such as long-term elderly and disabled tenants." Unlike many other cities‟ rent control laws, the City of Oakland‟s (the City) rent control ordinance, originally enacted in 1980, did not require landlords to show good cause to evict tenants. The preamble to Measure EE notes, in part, that "recent state laws that eliminate limits on rent increases upon the vacation of rental units provide added economic incentive to evict tenants, such that the number of no cause evictions has increased markedly in recent years," and that "the absence of a local law prohibiting a landlord from evicting a tenant without good cause is a significant barrier to implementation and enforcement of the Oakland Residential Rent Arbitration Ordinance."
To advance the goals expressed in Measure EE, a landlord is required to plead and prove a specified ground for any eviction. (§§ 6.A, 6.B(1).) Several of these grounds relate to tenant misuse or misconduct, including nonpayment of rent, violation of the lease or refusal to renew it, causing damage to the premises, disturbance of other tenants, drug activity, and denial of a landlord‟s access to the unit. (§ 6.A(1)-(7).) Other permitted grounds for eviction are premised on a specified reuse of the property after an owner or landlord recovers possession, including occupancy by the owner or the owner‟s family members, the making of repairs that cannot be completed while the unit is occupied, or removal of the property from the rental market. (§ 6.A(8)-(11).) Measure EE also provides a tenant a civil remedy when a landlord "wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of [the Ordinance‟s good cause requirements]," including when a landlord recovers possession but does not follow through on a permissible reuse of the property. (§ 7.A(2).)*fn2
In January 2003, Oakland landlords Kun Sam Kim and Mitchell Tannenbaum (appellants) filed their petition for writ of mandate asking the trial court to direct the City to refrain from enforcing the Ordinance.*fn3 In June 2003, the court permitted Jacqueline Howell, Robert Juba, and Just Cause for Oakland (Interveners) to file a complaint in intervention.*fn4 Sohini Deo-Chan was added as a petitioner in an amended petition filed in January 2005.
The parties filed cross-motions for summary judgment and summary adjudication. In a detailed 51-page order, the trial court concluded certain portions of the Ordinance were preempted by state law, but that those invalid portions were severable, and the remaining provisions of the Ordinance were valid and enforceable. The court struck several provisions of the Ordinance, including a limitation on rents demanded for certain vacant "replacement units," certain rebuttable presumptions that a landlord violated the Ordinance, the requirement that evictions under the Ellis Act be brought "in good faith, without ulterior reasons and with honest intent," a cause of action in favor of a tenant who has prevailed in an eviction action, and a provision for punitive damages against landlords who violate the Ordinance.*fn5 The court rejected appellants‟ other preemption arguments, and severed the invalid provisions of the Ordinance from the remainder. The court also sustained appellants‟ objections to certain declarations offered by the City because Measure EE‟s purpose was clear on its face and extrinsic evidence of its meaning was unnecessary.
All parties appealed from the judgment and the appeals are now consolidated. The City and Interveners agree that they will limit the scope of their appeals to the superior court‟s evidentiary rulings insofar as they may be relevant to oppose appellants in this court. Because we affirm the trial court‟s conclusion that the relevant provisions of Measure EE are valid, the City‟s cross-appeal is immaterial to our decision.
A. General Legal Principles That Inform Our Review
When we consider whether Measure EE is fatally preempted by state law, we must bear in mind that: "The scope of the initiative power reserved to the people is to be liberally construed." (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 147 (Birkenfeld).) There is generally a "strong presumption that legislative enactments "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.‟ " (Walker v. Superior Court (1988) 47 Cal.3d 112, 143; accord, People v. Morgan (2007) 42 Cal.4th 593, 605.) " "[A]bsent a clear indication of preemptive intent from the Legislature,‟ we presume that local regulation "in an area over which [the local government] traditionally has exercised control‟ is not preempted by state law. [Citation.] "The party claiming that general state law preempts a local ordinance has the burden of demonstrating preemption.‟ " (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242 (Action Apartment).) "Whether state law preempts a local ordinance is a question of law that is subject to de novo review." (Roble Vista Associates v. Bacon (2002) 97 Cal.App.4th 335, 339.)
"Under article XI, section 7 of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.‟ " (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897; accord, American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1251.) " "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, supra, at p. 897.) Local legislation "is "contradictory‟ to general law when it is inimical thereto." (Id. at p. 898.) "A local ordinance is preempted by a state statute only to the extent that the two conflict." (Action Apartment, supra, 41 Cal.4th at p. 1243.)
We are also concerned here only with a facial challenge to Measure EE. Accordingly, we will consider only the text of the measure and not whether it may be invalid as applied in certain circumstances. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.)
B. Our Analysis of the Preemption Issues is Guided Primarily by the Decisions of Birkenfeld and Fisher
In Birkenfeld the California Supreme Court upheld municipal rent control and limits on the permissible grounds for eviction. In that case plaintiff landlords argued that regulation of the grounds for eviction was preempted by state unlawful detainer statutes set forth at Code of Civil Procedure sections 1159 et seq. (Birkenfeld, supra, 17 Cal.3d at p. 148.) Those code sections make continuation of a tenant‟s possession after expiration of the term of tenancy a form of unlawful possession. Notwithstanding the unlawful detainer statutes, the Berkeley city charter was amended to prohibit the eviction of a tenant who was in good standing at the expiration of the term except in certain limited circumstances. (Id. at pp. 148-149.)
The Supreme Court held that the unlawful detainer statutes and Berkeley‟s charter amendments did not conflict because they each served separate purposes: "The purpose of the unlawful detainer statutes is procedural. The 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. In contrast the charter amendment‟s elimination of particular grounds for eviction is a limitation upon the landlord‟s property rights under the police power, giving rise to a substantive ground of defense in unlawful detainer proceedings. The mere fact that a city‟s exercise of the police power creates such a defense does not bring it into conflict with the state‟s statutory scheme." (Birkenfeld, supra, 17 Cal.3d at p. 149.) The court concluded: "Insofar as the charter amendment simply prohibits eviction of tenants who are in good standing except for the expiration of their tenancies, it is a reasonable means of assuring compliance with maximum rent limits and does not conflict with statutory repossession proceedings even though making available a substantive defense to eviction." (Id. at p. 152.)
The charter amendment considered by the court in Birkenfeld also included a separate requirement that a landlord obtain a certificate of eviction from the rent control board before commencing unlawful detainer proceedings. The court distinguished the requirement to obtain a certificate from the rent control board from the grounds for eviction provisions. The court held that the certificate requirement fatally conflicted with the unlawful detainer statutes because it "raise[d] procedural barriers between the landlord and the judicial proceeding." (Birkenfeld, supra, 17 Cal.3d at p. 151.)
In Fisher v. City of Berkeley (1984) 37 Cal.3d 644 (Fisher), the court reiterated its holding in Birkenfeld that "the statutory remedy for recovery of possession does not preclude limitations on grounds for eviction for the purpose of enforcing a local rent control regulation." (Fisher, supra, at p. 707.) The court noted that "[t]ypically, rent control schemes include eviction controls that require "good cause‟ in order for a landlord to bring an eviction action. Without such controls, "the security of tenure objectives of rent control laws could be undermined and the threat of eviction could be used to nullify the operation of rent regulations.‟ " (Id. at p. 693.) The court concluded that all provisions of the ordinance under review were valid and enforceable, except for a provision that created a presumption affecting the burden of proof with regard to the defense of retaliatory eviction. (Id. at p. 709.)
The ordinance that was reviewed in Fisher restated established law that retaliation could be asserted as a defense to eviction, but went on to provide that any eviction within six months of a tenant‟s exercise of rights under the ordinance would be presumed to be retaliatory. (Fisher, supra, 37 Cal.3d at p. 693 & fn. 54.) The court concluded that this presumption created by the ordinance improperly shifted the burden of proof of the affirmative defense of retaliation from the tenant to the landlord and therefore conflicted with Evidence Code section 500.*fn6 (Id. at pp. 696-698.) Except for the presumption of retaliation "[a]ll other provisions of the ordinance [were] valid and enforceable." (Id. at p. 709.)
Thus, under existing law, municipalities may by ordinance limit the substantive grounds for eviction by specifying that a landlord may gain possession of a rental unit only on certain limited grounds. (See Fisher, supra, 37 Cal.3d at p. 707; Birkenfeld, supra, 17 Cal.3d at p. 149.) But they may not procedurally impair the summary eviction scheme set forth in the unlawful detainer statutes and they may not alter the Evidence Code burdens of proof. (Birkenfeld, supra, at p. 151; Fisher, supra, at p. 709.)
We will consider each provision of Measure EE challenged by appellants as preempted by state law in light of the rules ...