Court Talk

Baba v. Bd. of Supervisors of City & County of San Francisco

by Clifford E. Fried

The Court of Appeal has ruled that recent amendments to the San Francisco Rent Ordinance are unconstitutional on their face. The ruling affirms a decision made by Superior Court Judge James J. McBride that the new laws had improperly criminalized certain speech by landlords and required tenants to hire lawyers before waiving their rights.

Sometimes referred to as the Daly Amendments to the Rent Ordinance (named after the law’s sponsor, San Francisco Supervisor Chris Daly), the amendments immediately became the subject of controversy after their passage on April 22, 2002. A group of tenants, landlords and eviction attorneys filed a lawsuit challenging the propriety of the amendments in October 2002.

The Daly Amendments were supposedly designed to stop the so-called Ellis bluff, used by a landlord to threaten but never actually file an Ellis-Act eviction in order to recover a unit from a tenant (the Ellis Act is a state law that permits rental property owners to remove a building from the rental market). If the tenant vacates the unit, the landlord receives the benefit of the Ellis eviction and could then rerent at market rates without consequences.

The Daly Amendments made it unlawful for a landlord to request that a tenant move or to threaten to recover possession unless, within five days, the landlord had served the tenant with an actual notice stating the just cause for eviction. The amendments also provided that any waiver of rights by a tenant was void unless the tenant was represented by a lawyer and the waiver was approved by a judge.
The Baba decision should have a positive effect on the challenge being brought by RHA against Measure EE. Oakland’s eviction ordinance also contains prohibitions against certain speech by landlords.

The group challenging the Daly Amendments claimed the laws violated their constitutional rights of free speech and self-representation. Judge McBride ruled the amendments were unconstitutional and the Court of Appeal agreed. Some of the other challenges advanced by the group were determined not sufficiently ripe for judicial determination.

The San Francisco City Attorney argued on appeal that the Daly Amendments were valid because they penalized false and misleading commercial speech that is not constitutionally protected at all. The Court of Appeal disagreed and found that the law suppressed speech that is protected by the First Amendment because it regulated (1) both commercial and noncommercial speech and, (2) speech that is neither false nor inherently misleading.

The Court of Appeal found that the law was more extensive than necessary and not narrowly tailored to serve the governmental interest in stopping the Ellis bluff. The court said, “If coerced ‘voluntary evictions’ is the perceived harm, that is the conduct that should be penalized.” The law improperly criminalized a wide range of First Amendment activity regardless of whether that activity caused any harm.
The Court of Appeal was highly critical of how the Board of Supervisors passed the law without any concrete data, studies or real-life examples of the harm the amendments were designed to address. The court found it disconcerting that the city “neglected to produce a single actual case in which a tenant vacated” pursuant to an owner-move-in or Ellis-Act bluff.

Supervisor Daly’s anti-landlord bias is well known. But it was absurd for the supervisor to think he could prohibit citizens from speaking. Lawmakers have a duty to uphold the constitution and protect a person’s right to speak freely. San Francisco has a history and tradition of free speech. The irony is that San Francisco’s lawmakers want to curtail the First Amendment rights of landlords.
The court was also quite liberal in giving examples of landlord conduct and communications that were invalid under the amendments. By striking down the amendments, the court may be giving guidance as to what is permitted speech by landlords. For example, a forgiving landlord who feels an obligation to the tenant beyond what is required by the Rent Ordinance may threaten to evict that tenant in the future unless the tenant remedies his or her prior breach or refrains from committing future breaches. Or, a landlord could request that a tenant move by also expressly acknowledging that the tenant has a legal right to stay (as long as nothing false or misleading is said). A landlord could also threaten that he or she will evict a tenant if or when a proper ground for eviction arises.

As to the requirement that a tenant hire a lawyer before waiving rights under a rent ordinance, the city argued that the law was valid because it did not violate any federal constitution or law. The court held that there is a right to self-representation in civil matters in California, which is necessary to protect and ensure the free exercise of constitutional rights, including the right to acquire and protect property and to access the courts.

In reaching its determination in regard to the right to self-representation, the court made a startling comment: The Court of Appeal intimated that San Francisco’s rent ordinance may not have the power to prohibit waivers. The language of the decision may validate the buying out of tenant rights and tenancies.
The decision also supports the notion that landlord speech regarding demands for possession, made in anticipation of litigation, is protected by a litigation privilege. The language of this decision is extremely helpful because the recent court decision in Action Apartments Assn. v. Santa Monica cannot yet be cited as binding authority, since the California Supreme Court has agreed to review the case. Until Action Apartments Assn. is decided, the Baba decision is the best authority for claiming the litigation privilege.

Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Commission
A question that arises with great frequency is whether disabled tenants may keep comfort pets or service animals in their units, notwithstanding pet prohibitions in their rental agreements. In a recent decision, the California Court of Appeal found a landlord liable for refusing to grant his tenants permission to keep their pet dog in spite of a no-dogs policy in the building. The landlord’s conduct violated the requirements of the state’s Fair Employment and Housing Act (FEHA) to make reasonable accommodations in rules and policies when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling. Although this case deals with the rights of condominium owners, it also has a direct application to landlord/tenant situations. There is a close analogy between condominium association rules and lease covenants. FEHA applies to both condominium associations and landlord/tenant relationships.

Prior to purchasing a condominium at the Auburn Woods complex, Ed Elebiari was involved in a serious car accident and suffered brain damage that required three surgeries. His psychiatrist diagnosed him as having bipolar disorder, obsessive-compulsive personality disorder and seizure disorder. He considered Ed permanently disabled and incapable of working. The record also showed that Ed’s wife Jayne, suffered serious episodes of depression, lasting from nine months to one year, experienced sleep problems, lacked concentration, engaged in acts of
self-mutilation and avoided social interaction.

The Auburn Woods condominiums are governed by covenants, conditions and restrictions that prohibit dogs anywhere in the condominium complex. Birds and cats were permissible. The Elebiaris offered notes from their doctors, explaining their respective medical needs for having a dog in their condominium. They claimed they needed the dog as a reasonable accommodation for their medical conditions.

Auburn Woods sent a letter to the Elebiaris, explaining that they would have to get rid of their dog or else be fined. The dog was given away to a friend. The Elebiaris filed a complaint, alleging unlawful discrimination against them due to Auburn Woods’ failure to provide them with reasonable accommodations. The state agency ruled in favor of the Elebiaris and awarded them $12,500 in emotional distress damages.

Auburn Woods filed a writ of mandate, and the Superior Court reversed it, stating that there was not enough evidence to show the dog was necessary as a reasonable accommodation. An appeal was filed. The Court of Appeal ruled that reasonable accommodation of a resident’s disability is a question subject to judicial examination rather than a question of law; and the court upheld the administrative decision in favor of the condominium owners (including damages for emotional distress).

Unlawful housing discrimination under FEHA includes the refusal to make reasonable accommodations in rules and policies when those accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling. Mental disabilities fall within the purview of this provision.

While the Court of Appeal said that depression and its related manifestations can meet the definition of disability under anti-discrimination laws, the court went on to say, “We reiterate that the FEHC did not rule that companion pets are always a reasonable accommodation for individuals with mental disabilities. Each inquiry is fact-specific and requires a case-by-case determination. But it is clear that, under the right circumstances, allowing a pet despite a no-pets policy may constitute a reasonable accommodation.”

The court noted that “it was the innate qualities of a dog, in particular a dog’s friendliness and ability to interact with humans that made it therapeutic here.” This appears as the first published decision dealing with service animals and fair housing laws in California. It will have an impact on landlording in the Bay Area, where tenants frequently claim the need for one or more dogs based upon medical need.

We can learn from the court’s decision that in deciding whether or not to enforce a lease covenant, landlords may not absolutely prohibit pets. Instead, each request for a pet must be analyzed separately to determine if the circumstances justify waiving a no-pet policy so that a tenant can use and enjoy his/her rental unit. Letters from a tenant’s doctor(s) could play an important role in deciding whether or not to enforce a no-pet policy.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. The information within this article is general in nature. Consult an attorney for any specific problem. Clifford E. Fried is with Wiegel & Fried, LLP, 415-552-8230. Copyright © 2005 by Wiegel & Fried, LLP. All rights reserved.