Demurrer in FLORA TEO ET AL VS. HENRI BORIUS ET AL| Trellis.Law

On January 30, 2020 a Motion-Secondary was filed involving a dispute between Shu, Donald, Teo, Flora, and Borius, Henri, Borius, Iris, Does 1 To 10, Inclusive, Saldarriaga, Lina, for UNLAWFUL DETAINER - RESIDENTIAL in the District Court of San Francisco County.

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SCOTT A. FREEDMAN (SBN 2408742)
1 JUSTIN A. GOODMAN (SBN 263377)
2 SHOSHANA RAPHAEL (SBN 312254) ELECTRONICALLY
ZACKS, FREEDMAN & PATTERSON, PC F I L E D
3 235 Montgomery Street, Suite 400 Superior Court of California,
County of San Francisco
San Francisco, CA 94104
4 Tel: (415) 956-8100 06/26/2020
Clerk of the Court
5 Fax: (415) 288-9755 BY: RONNIE OTERO
scott@zfplaw.com Deputy Clerk

6 justin@zfplaw.com
shoshana@zfplaw.com
7
Attorneys for Plaintiffs,
8
FLORA TEO and DONALD SHU
9 SUPERIOR COURT – STATE OF CALIFORNIA
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ZACKS, FREEDMAN & PATTERSON, PC

COUNTY OF SAN FRANCISCO – UNLIMITED CIVIL JURISDICTION
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SAN FRANCISCO, CALIFORNIA 94104

FLORA TEO and DONALD SHU, Case No.: CUD-19-666768
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Plaintiffs, MEMORANDUM OF POINTS AND
13 AUTHORITIES IN OPPOSITION TO
DEFENDANTS’ DEMURRER TO
14 vs. COMPLAINT
15 HENRI BORIUS, IRIS BORIUS, LINA Date: July 10, 2020
16 SALDARRIAGA, and DOES 1-10 inclusive, Time: 9:30 a.m.
Dept.: 302
17 Defendants.
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER
1 TABLE OF CONTENTS
2 I. INTRODUCTION ........................................................................................................................ 1
3
II. ARGUMENT ............................................................................................................................... 1
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A. Standard on Demurrer and Prima Facie Case for Unlawful Detainer. ..................................... 1
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6 B. The Definition of “Owner” Does Not Create an Additional Notice Requirement. .................. 2

7 C. The Cover Letter Complied with Rent Ordinance § 37.9A(f)(5)(B). ...................................... 4
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D. The Notice of Intent to Withdraw Cover Letter (“Cover Letter”) Adequately Notified
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Defendants of Their Rights to Reoccupancy. ................................................................................... 5
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E. The Relocation Assistance Check to Defendant Saldarriaga Did Not Condition Payment on
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the Acceptance of “Subsequent Occupant” Status. .......................................................................... 6
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F. The Withdrawal Extension Letter Properly Notified Defendants of Plaintiffs’ Election Not to
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Extend the Withdrawal Date for Other Units at the Property. ......................................................... 8
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15 III. CONCLUSION .......................................................................................................................... 12

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1
TABLE OF AUTHORITIES
2
3 CASES
4
Baugh v. Consumers Associates, Ltd. (1966) 241 Cal.App.2d 672, 674 ............................................. 2
5
Boston LLC v. Juarez (2016) 245 Cal.App.4th 75, 81 ......................................................................... 2
6
City of Santa Monica v. Yarmark (1988) 203 Cal.App.3d 153, 165 .................................................... 1
7
Horton-Howard v. Payton (1919) 44 Cal.App. 108, 112 ..................................................................... 2
8
Johnson v. City & Cty. of San Francisco (2006) 137 Cal. App. 4th 7, 14 ........................................... 7
9
Johnson v. City and County of San Francisco (2006) 137 Cal.App.4th 7, 13 ..................................... 2
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Johnson v. City and County of San Francisco (2006) 137 Cal.App.4th 7, 16 ..................................... 9
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Lamey v. Masciotra (1969) 273 Cal.App.2d 709, 713 ......................................................................... 2
12
Magan Medical Clinic v. California State Bd. of Medical Examiners (1967) 249 Cal.App.2d 124,
13
139 .................................................................................................................................................... 2
14
Naylor v. Superior Court (2015) 236 Cal.App.4th Supp. 1 ................................................................. 3
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Naylor v. Superior Court (2015) 236 Cal.App.4th Supp. 1, 8 ......................................................... 3, 4
16
Palmer/Sixth St. Properties, L.P. v. City of Los Angeles (2009) 175 Cal. App. 4th 1396, 1409 ......... 7
17
San Francisco Apartment Assn. v. City & Cty. of San Francisco (2016) 3 Cal. App. 5th 463, 482 .... 7
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Yarmark, supra, 203 Cal. App. 3d at 167 ........................................................................................... 10
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20 STATUTES

21 CCP § 1161 .......................................................................................................................................... 1
22 CCP §387(c) ......................................................................................................................................... 1
23 CCP §415.46 ........................................................................................................................................ 1
24 CCP §430.10(e) .................................................................................................................................... 1
25 Civ. § 1487 ........................................................................................................................................... 8
26 Civ. § 1494 ........................................................................................................................................... 8
27 Civ. § 1521 ........................................................................................................................................... 7
28 Civ. § 1523 ........................................................................................................................................... 8
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER
1 Civ. § 1526(a) ....................................................................................................................................... 8
2 Civ. § 1954.50, et seq. .......................................................................................................................... 7
3 Civ. § 1954.53(d)(2) ............................................................................................................................. 7
4 Govt. Code § 7060, et seq. ................................................................................................................... 1
5 Govt. Code § 7060.3 ............................................................................................................................ 6
6 Govt. Code § 7060.4(b) .................................................................................................................. 9, 11
7 Govt. Code § 7060.4(b)(3) ................................................................................................................. 10
8 Govt. Code § 7060.4(b)(5) ............................................................................................................. 9, 10
9 Govt. Code §7060.4(b)(5) .................................................................................................................. 10
10 Govt. Code §7060.6 ............................................................................................................................. 2
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11 Rent Ordinance § 37.9A(c) .................................................................................................................. 6
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12 Rent Ordinance § 37.9A(c)(4) .............................................................................................................. 7
13 Rent Ordinance § 37.9A(e)(3) .............................................................................................................. 8
14 Rent Ordinance § 37.9A(f)(4)(E) ......................................................................................... 8, 9, 10, 11
15 Rent Ordinance § 37.9A(f)(5) .............................................................................................................. 4
16 Rent Ordinance § 37.9A(f)(5)(B) ......................................................................................................... 4
17 Rent Ordinance § 37.9A(f)(5)(D) ................................................................................................. 3, 5, 6
18 Rent Ordinance § 37.9A(i) ................................................................................................................. 10
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1 I. INTRODUCTION
2 This is an unlawful detainer action based on Defendants’1 continuing possession of their
3 former rental unit, 1484 18th Avenue, San Francisco California 94122 (“Premises”), following the
4 termination of their tenancy and the withdrawal of the property from the residential rental market
5 pursuant to Govt. Code § 7060, et seq. (“Ellis Act”) and the San Francisco Rent Stabilization and
6 Arbitration Ordinance (“Rent Ordinance”) §§ 37.9(a)(13) and 37.9A. Plaintiffs complied with all
7 applicable requirements of the Ellis Act and Rent Ordinance, as more particularly alleged in the
8 Complaint filed herein on January 30, 2020 (Plaintiffs’ Request for Judicial Notice, Exhibit A
9 (“Complaint”)).
10 While strict compliance with the unlawful detainer statutes is required in an unlawful
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detainer action, “strict compliance” does not mean that Ellis Act notices must adhere to the
12 Tenderloin Housing Clinic Manual of Style. After all, the Ellis Act was enacted “to alleviate the
13 plight of landlords” (Bullock v. City & County of San Francisco (1990) 221 Cal.App.3d 1072,
14 1096), not to indulge willful ignorance of an unequivocal demand for possession: move out by
15 January 16, 2020 or be sued.
16 II. ARGUMENT
17 A. Standard on Demurrer and Prima Facie Case for Unlawful Detainer.
18
This general demurrer tests the ability of the Complaint to state a cause of action. (CCP
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§430.10(e).) A cause of action for unlawful detainer is met by the following elements: the existence
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of the landlord-tenant relationship, termination of that relationship, and the tenant's continued
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possession of the premises. (CCP § 1161.) The prima facie case of an Ellis Act unlawful detainer is
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purely procedural. (See, City of Santa Monica v. Yarmark (1988) 203 Cal.App.3d 153, 165; Govt.
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Code § 7060, et seq.)
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In consideration of the summary nature of the unlawful detainer process and its substantive
25
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This demurrer is brought by Defendant Hung (aka) Henry Kuo and by Wei Kuo. Wei Kuo is not a named party. She
27 claims to be an occupant of the Premises. She did not file an ex parte or noticed motion to intervene in this case,
pursuant to CCP §387(c), nor did she file Prejudgment Claim of Possession, pursuant to CCP §415.46, as can be seen
28 from the register of actions in this matter. (RJN, Ex. 3.) Wei Kuo is not a party to this action despite the clerk’s
erroneous acceptance of her first appearance fee.
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1 effect of causing a forfeiture of the tenant’s right to possession of real property, strict compliance of
2 the statutory requirements is required. (Horton-Howard v. Payton (1919) 44 Cal.App. 108, 112;
3 Baugh v. Consumers Associates, Ltd. (1966) 241 Cal.App.2d 672, 674; Lamey v. Masciotra (1969)
4 273 Cal.App.2d 709, 713.) The unlawful detainer statutes are, in part, procedural but they do not
5 constrain or limit the “substance of what kinds of breaches allow the procedural statute to take
6 effect.” (Boston LLC v. Juarez (2016) 245 Cal.App.4th 75, 81.)
7 Defendants argue that the Ellis Act, the substantive basis for this unlawful detainer,
8 mandates strict procedural compliance. (Defendants’ Memorandum of Points and Authorities in
9 Support of Demurrer (“Memo.”), 3:8-9.) The Ellis Act does not say anything of the sort. Govt. Code
10 §7060.6 states that a tenant “may assert by way of defense that the owner has not complied with the
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11 applicable provisions of this chapter, or statutes, ordinances, or regulations of public entities
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12 adopted to implement this chapter, as authorized by this chapter.” (Govt. Code § 7060.6.) It does
13 not say “strictly complied”; no section of the Ellis Act uses the term “strict compliance”. “Had the
14 Legislature meant for the statutes to mean what [THC] asserts the Legislature intended, the
15 Legislature could have and would have so stated. This it did not do.” (Magan Medical Clinic v.
16 California State Bd. of Medical Examiners (1967) 249 Cal.App.2d 124, 139.) If the choice to
17 include such a term is deliberate, so too should the omission of a term be construed as deliberate.
18 While a tenant facing an Ellis Act unlawful detainer may assert as a defense that her
19 landlord failed to comply with the provisions of the Ellis Act or any statutes, ordinances, or
20 regulations adopted pursuant to the Ellis Act (Johnson v. City and County of San Francisco (2006)
21 137 Cal.App.4th 7, 13), this does not include Defendants’ subjective interpretation of what a notice
22 of termination looks like, nor does it include provisions of the Rent Ordinance that are preempted
23 by state law. Plaintiffs complied with all authorized procedures of the Ellis Act, as implemented
24 locally.
25 B. The Definition of “Owner” Does Not Create an Additional Notice Requirement.
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Defendants argue that the Notice of Termination included an impermissible requirement that
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Defendants give notice of interest in reoccupancy to both the current and a subsequent owner by
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1 including “subsequent owner” in the definition of “Owner” in the Notice of Termination. (Memo.,
2 4:26-27 – 5:1-2.) They rely on Naylor v. Superior Court (2015) 236 Cal.App.4th Supp. 1 in support
3 of their position. (Memo., 4:27, 5:12-16.)
4 The Court in Naylor held that landlords are not required to notify tenants of the obligations
5 of future owners with regard to reoccupancy, given the specific statutory language of the Rent
6 Ordinance. (Naylor v. Superior Court (2015) 236 Cal.App.4th Supp. 1, 8.) However, Naylor was
7 decided prior to the enactment of the Jane Kim Amendments to the Rent Ordinance on November 8,
8 2015, which altered the text of § 37.9A(f)(5)(D) to read:
9 The tenant’s or lessee’s rights to reoccupancy under § 37.9A(c) if the rental
10 unit is again offered for rent or lease by a current or future owner and to
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relocation assistance under § 37.9A(e).
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(Rent Ordinance § 37.9A(f)(5)(D), emph. added).
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Unlike at the time of Naylor, the text of § 37.9A(f)(5)(D) now requires that landlords
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include future owners in their notifications to tenants regarding reoccupancy. Such notification of
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rights does not imply an additional notice requirement. Here, the Notice of Termination states that
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tenants must give “a notice to the Owner” in the event that the Owner, including a subsequent
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owner, “again offers the Rental Unit for rent or lease in the future.” (Complaint, Ex. 2, pg. 3; emph.
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added.) The Notice of Termination correctly informed Defendants that a single notice of interest is
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required to exercise their rights to reoccupancy.
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Moreover, no factual scenario could arise here that would complicate the text of the Notice
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of Termination. No subsequent owner could have existed at the time of service of the Notice of
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Termination and no subsequent owner exists currently. Though the exact text of the Rent Ordinance
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has changed, the reasoning of the Court in Naylor still stands: “The requirement of section 37.9A,
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subdivision (f)(5)(D) to give notice of ‘the tenant’s or lessee’s right [ ] to reoccupancy’ does not say
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‘all possible nuances that might arise under possible future factual scenarios with respect to right to
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reoccupancy.’” (Naylor v. Superior Court (2015) 236 Cal.App.4th Supp. 1, 8.)
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Defendants further argue that Plaintiffs’ attachment of Rent Ordinance § 37.9A to the Notice
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is insufficient because Plaintiffs did not also attach a copy of the Naylor opinion or an explanation
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1 of its opinion. Plaintiffs are not required by any statute or ordinance to attach case law to its notices.
2 Nor would attachment or explanation of Naylor inform Defendants here – the Rent Ordinance
3 language interpreted by the Naylor court was altered and consequently Naylor is no longer on point.
4 C. The Cover Letter Complied with Rent Ordinance § 37.9A(f)(5)(B).
5
Defendants argue that Plaintiffs did not adequately notify them that the NOITW specified
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“the name and the amount of rent paid by the tenant or lessee as an occupant of the rental unit,” as
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required by Rent Ordinance § 37.9A(f)(5)(B), because the use of “the tenant or lessee” in the notice
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is not specific to Defendants. (Memo., 5:18-19, 6:3-5.) In other words, they claim they are justified
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in not timely vacating because they did not know that the notice addressed to them and served on
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them at the Premises referred to them or the Premises. This is a disingenuous reading of the notice
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sent to Defendants on January 24, 2019 (i.e. Complaint, Ex. 3 (“Cover Letter”)). The Cover Letter
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quoted the language of Rent Ordinance § 37.9A(f)(5)(B) and enclosed the NOITW itself. Plaintiffs
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complied and this argument must fail.
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Rent Ordinance § 37.9A(f)(5) requires that withdrawing landlords give tenants notice that an
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NOITW has been filed and information about its contents. (Rent Ordinance § 37.9A(f)(5).)
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Specifically, Subsection (f)(5)(B) provides:
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(5) Within 15 days of delivery of a Subsection (f)(1) notice of intent to the
18 Rent Board, the owner shall provide notice to any tenant or lessee to be
displaced of the following:
19
20 …
(B) That the notice to the Rent Board specified the name and the
21 amount of rent paid by the tenant or lessee as an occupant of the rental
22 unit;

23 (Rent Ordinance § 37.9A(f)(5)(B), emphasis added.)

24 No particular form of notice is required. The Court is “not required to stretch [the Rent Ordinance’s]
25 language to include a notice provision not expressly stated.” (Naylor v. Superior Court (2015) 236
26 Cal.App.4th Supp. 1, 8.)
27 Plaintiffs’ Cover Letter states:
28 Accordingly, PLEASE TAKE NOTICE THAT:
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER
…
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(B) The Notice of Intent To Withdraw specifies the name of and the
2 amount of rent paid by the tenant or lessee as an occupant of the
identified rental unit(s);
3
4 (Complaint, Ex. 3, emphasis added.)

5 The language of the Cover Letter matches the requirement contained in the Rent Ordinance.

6 The Cover Letter also enclosed the NOITW that had been filed with the Rent Board. As stated in

7 the Cover Letter, the NOITW specifies the names of the occupants and the amount of rent paid for

8 each unit. If Defendants were confused by the Cover Letter’s description of the NOITW, they could

9 refer to the enclosed NOITW for clarity. Plaintiffs complied with the Rent Ordinance by providing

10 a notice that expressly stated the requirement in the Rent Ordinance and the NOITW. No more can
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11 be required.
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12 D. The Notice of Intent to Withdraw Cover Letter (“Cover Letter”) Adequately Notified
Defendants of Their Rights to Reoccupancy.
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14 Defendants contend that Plaintiffs failed to notify Defendants of their rights to reoccupancy

15 as required by Rent Ordinance § 37.9A(f)(5)(D) because the Cover Letter includes “subject to Cal.

16 Govt. Code, §7060.3.” (Memo, 6:13-18.) Rent Ordinance § 37.9A(f)(5)(D) states, in part:

17 (5) Within 15 days of delivery of a Subsection (f)(1) notice of intent to the
Rent Board, the owner shall provide notice to any tenant or lessee to be
18 displaced of the following: …
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(D) The tenant's or lessee's rights to reoccupancy under Section 37.9A(c)
20 if the rental unit is again offered for rent or lease by a current or future
owner and to relocation assistance under Section 37.9A(e)[.]
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(Rent Ordinance § 37.9A(f)(5)(D), emphasis added.)
22
23 This language does not contemplate that future owners are only bound if they take with knowledge.

24 Plaintiffs’ Cover Letter states:

25 (D) You have the right to reoccupy the Rental Unit under Section
37.9A(c) of the Rent Ordinance, if the Rental Unit is again offered for
26 rent or lease by a current owner or by a future owner, subject to Cal.
Govt. Code, §7060.3.You have the right to relocation assistance under
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Section 37.9A(e) of the Rent Ordinance[.]
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER
(Complaint, Ex. 3, pg. 1, emphasis added.)
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2 The difference between Rent Ordinance § 37.9A(f)(5)(D) and the Cover Letter is “subject to

3 Cal. Govt. Code, §7060.3”. Defendants’ rights of recoccupancy are, indeed, subject to Govt. Code §

4 7060.3 – this cannot be disputed. But these rights are only affected by § 7060.3 when the unit is

5 offered for rent by a subsequent owner who is a bona fide purchaser for value and constraints are

6 not recorded. Whether or not a subsequent owner will exist or will offer the unit for rent could not

7 be determined at the time the Cover Letter was served (nor can it be determined as of the filing of

8 this Opposition). The application of Govt. Code § 7060.3 cannot affect Defendants’ rights to

9 reoccupancy if re-rented by Plaintiffs, the current owners.

10 Defendants also contend that the Cover Letter is deficient because it “does not reference the
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right to re-rent the unit in the first five years at the same rent-controlled rate that Defendants paid
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12 when Plaintiffs filed the NOITW.” (Memo., 7:14-19.) Defendants provide no authority for the

13 contention that such a reference is required by either the Rent Ordinance or Ellis Act. Rent

14 Ordinance § 37.9A(f)(5)(D) requires notification of “[t]he tenant's or lessee's rights to reoccupancy

15 under Section 37.9A(c).” (Rent Ordinance § 37.9A(f)(5)(D).) The Cover Letter states, “You have

16 the right to reoccupy the Rental Unit under Section 37.9A(c) of the Rent Ordinance[.]” (Complaint,

17 Ex. 3, pg. 1.) Rent Ordinance § 37.9A(f)(5)(D) requires that owners notify tenants of the fact of

18 their rights under § 37.9A(c) in the (f)(5)(D) notice, not the content of § 37.9A(c). The substance of

19 those rights is contained in the Notice of Termination of Tenancy (Complaint, Ex. 2, pgs. 3-4) and

20 the attached copy of the full text of Rent Ordinance § 37.9A (Complaint, Ex. 2, Attachment 1 [pgs.

21 7-17]). Plaintiffs’ Cover Letter mirrors the language of Rent Ordinance § 37.9A(f)(5)(D), and thus

22 satisfies its notice requirement.

23 E. The Relocation Assistance Check to Defendant Saldarriaga Did Not Condition
Payment on the Acceptance of “Subsequent Occupant” Status.
24
25 Defendants further contend that negotiation of the check to Defendant Saldarriaga was

26 impermissibly conditioned on her acceptance of status as a “subsequent occupant” and that the

27 condition “attempts to set up an accord and satisfaction” on the issue of subsequent occupancy.

28 (Memo., 7:21-22, 8:5-7, 8:8-10.)

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1 The Ellis Act has a form of state-level vacancy decontrol provisions (Palmer/Sixth St.
2 Properties, L.P. v. City of Los Angeles (2009) 175 Cal. App. 4th 1396, 1409), similar to the Costa-
3 Hawkins Rental Housing Act (Civ. § 1954.50, et seq.). Costa-Hawkins allows market rate increases
4 when the last original occupant vacates and only subsequent occupants remain. (Civ. §
5 1954.53(d)(2).) However, Costa-Hawkins does not preempt the Ellis Act. (Palmer/Sixth St.
6 Properties, L.P., supra, 175 Cal. App. 4th at 1409.) Therefore, a landlord would need to preserve
7 their rights, so as to avoid elevating a “subsequent occupant” to “original occupant”. Otherwise, in
8 the event of re-rental as provided in the Ellis Act, the newest occupant may become rent controlled
9 at the oldest tenant’s rate. This is clearly not the purpose of the Ellis Act.
10 Part of the effort to preserve these rights is consistent treatment of a (sub)tenant the landlord
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11 has no privity with. Here, Plaintiff properly identified the subsequent occupant in the Notice of
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12 Termination, and the payee line of the relocation assistance payment checks matched the Notice of
13 Termination. (Complaint, Ex. 2.) Status as a subsequent occupant is relevant only to the order of
14 reoccupancy pursuant to Rent Ordinance § 37.9A(c)(4), which states, in part:
15 If all such tenants or lessees do not within thirty (30) days thereafter agree
and notify the landlord of which tenant(s) or lessee(s) will reoccupy the
16 unit, the tenant(s) or lessee(s) who first occupied the unit previously shall
be entitled to accept the landlord's offer.
17
(Rent Ordinance § 37.9A(c)(4).)
18
Defendants argue that this “payee” line forces Defendant Saldarriaga to “accept the status of
19
subsequent occupant.” (Memo., 8:6.) Defendants have it exactly backwards. Relocation assistance
20
is allowed at the local level by a preemptive state law that does not permit it to create new,
21
substantive defenses (Johnson v. City & Cty. of San Francisco (2006) 137 Cal. App. 4th 7, 14) or
22
condition the ability to withdraw from the residential rental market on a waiver of other rights (San
23
Francisco Apartment Assn. v. City & Cty. of San Francisco (2016) 3 Cal. App. 5th 463, 482).
24
Nor is the check an “attempt[] to set up an accord and satisfaction” on the issue of status as a
25
subsequent occupant. “An accord is an agreement to accept, in extinction of an obligation,
26
something different from or less than that to which the person agreeing to accept is entitled.” (Civ. §
27
1521.) “Acceptance, by the creditor, of the consideration of an accord extinguishes the obligation,
28
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1 and is called satisfaction.” (Civ. § 1523.) Accord and satisfaction are contract concepts and do not
2 apply in the absence of an agreement.
3 Here, the checks were issued pursuant to Rent Ordinance § 37.9A(e)(3) and not in
4 satisfaction of any debt. Relocation assistance payments are statutory requirements, not contractual
5 obligations. Negotiation of the checks could not bind Defendants in the manner of an accord and
6 satisfaction.
7 Defendant cite to Civ. § 1494 in support of their position: “An offer of performance must be
8 free from any conditions which the creditor is not bound, on his part, to perform.” (Civ. § 1494.)
9 This citation is taken wildly out of context. Civ. § 1487, in same chapter, provides that “[a]n offer
10 of performance must be made by the debtor” – there is no debtor here because there is no contract
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11 and no debt, only payments required by statute. Similarly, Civ. § 1526(a) explicitly provides that it
SAN FRANCISCO, CALIFORNIA 94104

12 applies “[w]here a claim is disputed or unliquidated and a check or draft is tendered by the debtor in
13 settlement thereof in full discharge of the claim.” Again, there is no claim or debt here. Defendants’
14 citations to Civ. § 1494 and Civ. § 1526(a) are misplaced – these provisions apply to contracts
15 claims, unlike the instant situation.
16 As stated above, status as a subsequent occupant is relevant only to right of reoccupancy
17 should the Premises be offered for rent or lease in the future, and the checks themselves are not
18 definitive in determining the relevant occupancy dates. Plaintiffs are required to make relocation
19 assistance payments, they did so. Defendants’ argument must fail.
20 F. The Withdrawal Extension Letter Properly Notified Defendants of Plaintiffs’
21 Election Not to Extend the Withdrawal Date for Other Units at the Property.

22 Defendants contends that Plaintiffs did not comply with Rent Ordinance § 37.9A(f)(4)(E)

23 because Plaintiffs did not specify that another unit at the property had made an extension claim.

24 (Memo., 8:13-14.) Plaintiffs were not required to do so. Nonetheless, Plaintiffs did notify

25 Defendants of all mandatory extension claims made and whether Plaintiffs disputed the claims.

26 Defendants’ argument problematically requires that an extension on the basis of senior or

27 disabled status is at the owner’s election, rather than a mandatory extension. The Ellis Act makes a

28 clear distinction between owner elections to extend and mandatory extensions, and does not
-8-
Teo, et al. v. Borius, et al., San Francisco County Case No. CUD-19-666768
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER
1 authorize notification of mandatory extensions.
2 Defendant’s reading of Rent Ordinance § 37.9A(f)(4)(E) is impermissible under the Ellis
3 Act. “By carefully spelling out certain types of notice which public entities may require, the Act
4 clearly indicates that only these types are authorized and other, additional notice requirements are
5 not permissible.” (Johnson v. City and County of San Francisco (2006) 137 Cal.App.4th 7, 16,
6 internal citation omitted.) When the Withdrawal Extension was served, Govt. Code § 7060.4(b),
7 stated, in part:
8 However, if the tenant or lessee is at least 62 years of age or disabled, and
9 has lived in his or her accommodations for at least one year prior to the date
of delivery to the public entity of the notice of intent to withdraw pursuant
10 to subdivision (a), then the date of withdrawal of the accommodations
ZACKS, FREEDMAN & PATTERSON, PC

of that tenant or lessee shall be extended to one year after the date of
235 MONTGOMERY STREET, SUITE 400

11
SAN FRANCISCO, CALIFORNIA 94104

delivery of that notice to the public entity, provided that the tenant or lessee
gives written notice of his or her entitlement to an extension to the owner
12
within 60 days of the date of delivery to the public entity of the notice of
13 intent to withdraw. In that situation, the following provisions shall apply:
…
14 (3) The owner may elect to extend the date of withdrawal on any other
accommodations up to one year after date of delivery to the public entity of
15 the notice of intent to withdraw, subject to paragraphs (1) and (2).
16 …
(5) Within 90 days of date of delivery to the public entity of the notice of
17 intent to withdraw, the owner shall give written notice to the public entity
and the affected tenant or lessee of the owner’s election to extend the date
18 of withdrawal and the new date of withdrawal under paragraph (3).
19 (Govt. Code § 7060.4(b), emphasis added.)
20
The Ellis Act has since been amended to clarify that §7060.4(b)(5) applies to elected
21
extensions under §7060.4(b)(3) and not mandatory extensions under subsection §7060.4(b). As of
22
January 1, 2020, Govt. Code §7060.4(b)(5) provides:
23
(5) Within 90 days of date of delivery to the public entity of the notice of
24 intent to withdraw, the owner shall give written notice of the owner’s
election to extend a tenancy under paragraph (3) and the revised date of
25
withdrawal to the public entity and any tenant or lessee whose tenancy is
26 extended.

27 (Govt. Code § 7060.4(b)(5), emphasis added.)
28 The Ellis Act specifies a requirement to notify tenants of an owner’s election to extend the
-9-
Teo, et al. v. Borius, et al., San Francisco County Case No. CUD-19-666768
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER
1 date of withdrawal, but not does not include a requirement to notify tenants of the mandatory
2 extension claims of other tenants. The distinction between mandatory and elective extensions is
3 explicit; Govt. Code § 7060.4(b)(5) not only refers to the “owner’s election to extend the date of
4 withdrawal” but also refers to preceding paragraph (3), which authorizes the owner’s election.
5 (Govt. Code § 7060.4(b)(5).) As a matter of policy, this is sensible. Disclosure of another tenant’s
6 extension claim would necessarily require disclosing th

Case Info

Judge

Charles F. Haines Track Judge’s New Case

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Document Filed Date

June 26, 2020

Case Filing Date

January 30, 2020

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Motion-Secondary: FLORA TEO ET AL VS. HENRI BORIUS ET AL

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