Motion for Leave in Yen VS Mosser| Trellis.Law

On May 25, 2021 a Motion,Ex Parte was filed involving a dispute between Andrew Yen, Ball, James, Blanco, Kaitlin, James Ball, Kaitlin Blanco, Melina Tessier, Tessier, Melina, Yen, Andrew, and 1428 Jackson Strret Associates, Lp, 553 Sycamore Street Associates, Lp, Conservice, Llc, Fpi Management, Inc., Mosser, Neveo, Neveo Mosser, Oak 1425 Harrison Street Property, Llc, Oak 1428 Jackson, Llc, Oak 406 Van Buren Ave. Property, Llc, Oak-553 Sycamore, Llc, Oak9 Portfolio Owner, Lp, Pach Affordable Holdings, Llc, The Mosser Companies, Inc., Yardi Systems, Inc., Yes Energy Management, Inc., for Unlimited Civil in the District Court of Alameda County.

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1 BARBARA J. PARKER, City Attorney, SBN 069722
MARIA BEE, Chief Assistant City Attorney, SBN 167716
2 LAURA LANE, Supervising Deputy City Attorney, SBN 184557
UBALDO FERNANDEZ, Deputy City Attorney, SBN 296112
3 One Frank H. Ogawa Plaza, 6th Floor
Oakland, California 94612
4 Telephone: (510) 238-7040 Fax: (510) 238-6500
Email: ufernandez@oaklandcityattorney.org
5

6
Attorneys for Proposed Amicus Curiae,
7 CITY OF OAKLAND

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF ALAMEDA
11

12 ANDREW YEN, JAMES BALL, KAITLIN Case No. RG21-100261
BLANCO, and MELINA TESSIER, on behalf of
13 themselves and all others similarly situated, ASSIGNED FOR ALL PURPOSES TO
HON. EVELIO GRILLO
14 Plaintiff(s), DEPARTMENT 21
15 v. EX PARTE APPLICATION FOR LEAVE
TO FILE A BRIEF AS AMICUS CURIAE;
16 NEVEO MOSSER, THE MOSSER MEMORANDUM OF POINTS AND
COMPANIES, INC., 553 SYCAMORE STREET AUTHORITIES; DECLARATION OF
17 ASSOCIATES, LP, 1428 JACKSON STREET UBALDO FERNANDEZ; [PROPOSED]
ASSOCIATES, LP, CONSERVICE, LLC, FPI ORDER
18 MANAGEMENT, INC., OAK9 PORTFOLIO
OWNER, LP, OAK 406 VAN BUREN AVE
19 PROPERTY, LLC, OAK 553 SYCAMORE,
LLC, OAK1425 HARRISOON STREET
20 PROPERTY, LLC, OAK-1428 JACKSON, LLC,
PACH AFFORDABLE HOLDINGS, LLC,
21 YARDI SYSTEMS, INC, YES ENERGY
MANAGEMENT, INC, DOES one through five
22 hundred
23 Defendant(s).
24

25 EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE
26 PLEASE TAKE NOTICE that on February 25, 2022 at 3:00 p.m., The City of Oakland
27 (“the City”) will file this ex parte application to be decided on the papers in Department 21 of the
28 above-entitled Court, located at the Administration Building, 1221 Oak Street, Oakland,

1
EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CURIAE
1 California. The City will, and hereby does, apply ex parte pursuant to California Rules of Court

2 3.1200 et seq. for a an order to granting to City of Oakland leave to file a brief as amicus curiae.

3 This application is brought on grounds that Code Civ. Proc. § 128, California Cal. Rules

4 of Court, 8.882, and caselaw permits the participation of amicus curiae in Superior Court. See

5 generally, In re Marriage Cases (2008) 43 Cal.4th 757 and San Francisco Chamber of

6 Commerce v. City and County of San Francisco (1969) 275 Cal.App.2d 499. Further, this

7 Court’s Order of November 5, 2021 invited the City to opine on issues presented by this case.

8 Prior to 10:00 a.m. on February 24, 2022, counsel for all parties were given notice of this

9 Application as set forth in the Declaration of Ubaldo Fernandez, filed herewith.

10 This Application is made based upon this Application, the Memorandum of Points and

11 Authorities, the Declaration of Ubaldo Fernandez, the Proposed Order submitted herewith, and

12 the complete files and records of this action.

13 MEMORANDUM OF POINTS AND AUTHORITIES

14 I. This Court Invited The City of Oakland to Opine on The Issues in This Case

15 On November 5, 2022, this Court issued an order sustaining, with leave to amend, the

16 demurrers to the first amended complaint in this action (“Court Order”). The Court Order based

17 its decision, in part, on an analysis of the City of Oakland’s Residential Rent Adjustment

18 Program Ordinance (the “Ordinance”) and the implementing Rent Adjustment Program

19 Regulations (the “Regulations.”) Court Order at 4-6. The Court Order required plaintiffs to serve

20 the Court Order on the Oakland Rent Board. Id. at 10. The Court invited the Rent Board to, “in

21 its discretion, investigate and address the issues presented in these cases.” Id. at 10.

22 II. Superior Courts Have Authority to Allow Participation of Amici Curiae

23 This Court has inherent powers “to provide for the orderly conduct” of its proceedings

24 and to “amend and control its process and orders so as to make them conform to law and

25 justice.” Code Civ. Proc. § 128(3), (8). The Supreme Court of California has recognized that

26 “the superior court, in exercising its traditional broad discretion over the conduct of pending

27 litigation, retain[s] the authority to determine the manner and extent of these entities'

28 participation as amici curiae that would be of most assistance to the court.” In re Marriage Cases

2
EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CURIAE
1 (2008) 43 Cal.4th 757, 721 fn.10. The Court of Appeals has also recognized the right to

2 participate in the Superior Court as amicus curiae See, e.g., San Francisco Chamber of

3 Commerce v. City and County of San Francisco (1969) 275 Cal.App.2d 499, 505 (“Counsel for

4 the proposed interveners were permitted to argue as amici curiae in both the superior court and

5 this court.”).

6 III. Amici Curiae Are Not Required To Submit Briefs By Noticed Motion

7 California Rules of Court do not contain a process for submitting amicus curiae briefs in

8 Superior Court. Applications for permission to file an amicus curiae briefs submitted in the

9 California Supreme Court and Appellate courts are simply “served and filed,” they need not be

10 presented by a noticed by motion. Cal. Rules of Court 8.882(d)(1). The City cannot think of any

11 reason an application for permission to file an amicus curiae brief in Superior court should be

12 any different than the appellate process.

13 IV. The City Satisfies Requirements for Submitting an Application for
Permission to File an Amicus Curiae Brief
14

15 By way of this application, the City of Oakland meets the requirements of Cal. Rules of

16 Court 8.882 for an application for permission to file an amicus curiae brief in the California

17 Supreme Court and Appellate Courts.

18 A. Statement of Interest

19 The City of Oakland is a municipal corporation. The Oakland City Council passed the

20 Ordinance and Regulations at issue in this case. The Housing, Residential Rent and Relocation

21 Board (the “Rent Board”) is a board of the City with quasi-judicial duties of interpreting the

22 Ordinance and Regulations in appeals of decisions made by hearing officers of the Rent

23 Adjustment Program. The Rent Board may propose regulations, to be passed by City Council, to

24 implement the Ordinance. The City has an interest in the enforcement of its Ordinance and

25 Regulations to accomplish their purpose. The proposed amicus curiea brief will assist the court

26 in deciding this matter by offering the City’s expertise in the operation of the rent control scheme

27 created by the Ordinance and Regulations.

28 ///

3
EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CURIAE
1 B. Proposed Amicus Curiae Brief Authorship

2 Ubaldo Fernandez, Deputy City Attorney, authored the proposed amicus brief in its

3 entirety. Declaration of Ubaldo Fernandez (“Fernandez Decl.”) ¶ 5.

4 C. Monetary Contributions

5 No person or entity made any monetary contribution to fund the preparation of this brief

6 other than the proposed amicus curiae. Fernandez Decl. ¶ 6.

7 V. Notice to Parties

8 On February 24, 2022, at approximately 9:17AM, Ubaldo Fernandez, counsel for

9 proposed amicus, notified by email counsel for all parties in this matter that on February 25,

10 2022, the City of Oakland would apply to the Court ex parte for an order granting leave to file a

11 brief as amicus curiae. Mr. Fernandez asked whether the parties would oppose the motion. At the

12 time of filing, only Mr. Ahmad, Counsel for FPI Management, Inc. had responded to the notice

13 of this ex parte application stating he would oppose. Mr. Silverstien, on behalf of plaintiffs

14 responded Plaintiffs would not oppose the application. Fernandez Decl. ¶¶ 8-9

15 VI. Conclusion

16 This Court invited the City to opine on the matters in this case, has authority to grant the

17 City leave to file a brief as amicus curiae, and the City has complied with the requirements of

18 Cal. Rules of Court, 8.882 for submitting such a brief. The City has also complied with the

19 requirements for filing an ex parte application. Therefore, this court should grant the City’s Ex

20 Parte Application for Leave to File A Brief as Amicus Curiae.

23 Dated: February 25, 2022 BARBARA J. PARKER, City Attorney
24

25 By:
Ubaldo Fernandez, Deputy City Attorney
26 Attorneys for Proposed Amicus Curiae,
CITY OF OAKLAND
27

4
EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CURIAE
1 DECLARATION OF UBALDO FERNANDEZ

2 I, Ubaldo Fernandez, declare as follows:

3 1. I am not a party to this action. I am a Deputy City Attorney for the City of Oakland,

4 licensed to practice law in all courts in the state of California. The facts stated herein are based

5 on my personal knowledge and, if called as a witness, I could and would competently testify

6 thereto.

7 2. On November 18, 2021, Counsel for Plaintiffs, Robert Salinas, served the City of

8 Oakland this Court’s November 5, 2022 order sustaining, with leave to amend, the demurrers to

9 the complaint in this action (“Court Order”).

10 3. The Court Order invited the City to opine on the Court’s interpretation of the

11 Residential Rent Adjustment Program Ordinance and the implementing Rent Adjustment

12 Program Regulations.

13 4. The City wishes to file as amicus curiae the brief attached to this declaration as Exhibit

14 A.

15 5. I prepared the proposed amicus curiae brief in its entirety.

16 6. No person or entity made any monetary contribution to the preparation of proposed

17 amicus curiae brief other than the City of Oakland.

18 7. A statutory basis for providing relief ex parte is provided by Code Civ. Proc. § 128,

19 Cal. Rules of Court 8.882(d), and caselaw permitting the application for permission to file an

20 amicus curiae brief to a Superior Court.

21 8. On February 24, 2022, at approximately 9:17am, I notified, by email, counsel for all

22 parties in this action that on February 25, 2022, the City of Oakland would apply to the Court ex

23 parte for an order granting leave to file a brief as amicus curiae. I requested that counsel inform

24 me whether they would oppose the application. Attached as Exhibit B to this declaration are true

25 and correct emails demonstrating I notified counsel for all parties of this ex parte application.

26 9. At the time of filing, only Mr. Ahmad, Counsel for FPI Management, Inc. had

27 responded to my notice of this ex parte application stating he would oppose. Mr. Silverstien, on

28 behalf of plaintiffs responded Plaintiffs would not oppose the application.

5
EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CURIAE
1 10. Pursuant to the proof of service filed with this motion, I also arranged for this

2 application to be served by e-mail to counsel for the parties in this case

3 11. Before filing this application I visited “Department Information” internet page for

4 Department 21 on The Alameda County Court’s Website.

5 (https://publicrecords.alameda.courts.ca.gov/PRS/Case/DepartmentDetailInfo?DepartmentNumb

6 er=21&Type=Complex). I understood from the “Department Information” page that it is the

7 practice of Department 21 to decide ex parte applications on the papers. Therefore, I did not

8 obtain a reservation number or hearing date before filing this application. If the Court deems that

9 a hearing is necessary for deciding this ex parte application, I will make myself available for

10 such a hearing. I can also make myself available to answer any of the Court’s questions

11 regarding the proposed amicus curiae brief at a separate hearing date.

12 12. On February 25, 2022 I received an email from FPI Management, stating that they

13 will oppose my ex parte application.

14 13. On February 25, 2022, I received an email stating that the plaintiff will not be

15 opposing my ex parte application.

17 I declare under penalty of perjury under the laws of the State of California that the foregoing is

18 true and correct and that this declaration was executed on the 25th day of February 2022.

21 Ubaldo Fernandez
22

26
27

6
EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CURIAE
1

4 [PROPOSED] ORDER GRANTING THE CITY OF OAKLAND’S EX PARTE

5 APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE

7 On February 25, 2022, the City of Oakland filed an ex parte application requesting an

8 order granting leave to file a brief as amicus curiae. Having considered the papers and pleadings

9 on file, and GOOD CASE APPEARING, the Court GRANTS the ex parte application and

10 ORDERS that the City of Oakland’s Amicus Curiae brief be filed.

12 IT IS SO ORDERED

14
Dated:
15

17 HONORABLE EVELIO GRILLO
ALAMEDA COUNTY SUPERIOR COURT
18

26
27

7
EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CURIAE
1 PROOF OF SERVICE
Andrew Yen v. Neveo Mosser
2 Alameda County Superior Court Case No. RG21-100261
3 I am a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is City Hall, One Frank H. Ogawa Plaza, 6th Floor,
4 Oakland, California 94612. On the date set forth below, I served the within documents:
5 EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS
CURIAE; MEMORANDUM OF POINTS AND AUTHORITIES;
6 DECLARATION OF UBALDO FERNANDEZ; [PROPOSED] ORDER
7
☐ By United States mail. I enclosed the documents in a sealed envelope or package
8 addressed to the persons at the address(s)es listed below and (specify one):
9 ☐ Deposited the sealed envelope with the United States Postal Service, with the
postage fully prepaid.
10
☐ Placed the envelope for collection and mailing, following our ordinary business
11 practices. I am readily familiar with the City of Oakland’s practice for collecting
and processing correspondence for mailing. On the same day that correspondence
12 is placed for collection and mailing, it is deposited in the ordinary course of
business with the United States Postal Service, in a sealed envelope with postage
13 fully prepaid.
☐ By messenger service. I served the documents by placing them in an envelope or
14 package addressed to the persons at the address(es) listed below and providing them to
the professional messenger.
15
☐ By overnight delivery. I enclosed the documents in an envelope or package provided
16 by an overnight delivery carrier and addressed to the persons at the address(es) listed
below. I placed the envelope or package for collection and overnight delivery at an
17 office or a regularly utilized drop box of the overnight delivery carrier.
☒ By Electronic Service. Pursuant to California law, including California Rules of Court
18 and Code of Civil Procedure or based on an agreement of the parties to accept service by
email transmission, I sent the documents in PDF format to the person(s) at the email
19 addresses listed below.
20 ☐ By fax transmission. Based on an agreement of the parties to accept service by fax
transmission, I faxed the documents to the persons at the fax numbers listed in below.
21
☐ By personal delivery. I personally delivered the document(s) to the person(s) at the
22 address(es) listed below.

26
27

8
EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CURIAE
1 CLAPP, MORONEY, VUCINICH, BEEMAN SHEPPARD, MULLIN, RICHTER &
and SCHELEY EAMPTON LLP
2 1111 Bayhill Drive, #300 Four Embarcadero Center, 17th Floor, San
San Bruno, CA 94066 Francisco, CA 94111-4109
3
L. Theodore Scheley III, Esq. Arthur J. Friedman, Esq.
4 Xong "Jackson" Zhou, Esq. Joseph P. Sakai, Esq.
Linda Carcamo Anna S. Mclean, Esq.
5
Emails: LCarcamo@clappmoroney.com,
Emails: afriedman@sheppardmullin.com,
6 xzhou@clappmoroney.com,
LCarcamo@clappmoroney.com jsakai@sheppardmullin.com, -
7 amclean@sheppardmullin.com
Attorney for Defendants Neveo Mosser, The
8 Mosser Companies, Inc., 553 Sycamore Street Attorneys for Defendants Oak9 Portfolio Owner,
Associates, LP, 1428 Jackson Street Associates, LP, Pach Affordable Holdings, LLC
9 LP, Oak 406 Van Buren Ave Property, LLC,
Oak-553 Sycamore, LLC, Oak 1425 Harrison
10 Street Property, LLC, Oak-1428 Jackson, LLC

11 SKADDEN, ARPS, SLATE, MEAGIIER & WILKE FLEURY LLP
FLOMLLP 400 Capitol Mall, Twenty-Second Floor,
12 525 University Ave., Suite 1400 Sacramento, CA 95814
Palo Alto, CA 94301
13 George A. Guthrie, Esq.
Raza Rasheed, Esq. lslam M. Ahmad, Esq.
14 John M Neukom, Esq. Victoria Garner
Abraham A. Tabaie, Esq
15 Emails: gguthrie@wilkefleury.com,
iahmad@wi1kefleury.com
16 Emails : raza.rasheed@skadden.com,
VGamer@wilkefleury.com
john.neukom@skadden.com,
17 abraham.tabaie@skadden.com Attorneys for Defendant FPI Management

18 Attorneys for Defendants Yardi Systems, Inc. and
Yes Energy Management, Inc
19 HAYES SCOTT BONINO ELLINGSON ACCE INSTITUTE
GUSLANI SIMONSON & CLAUSE LLP P.O. Box 7226
20 999 Skyrvay Road, Suite 310 Oakland, California, 94601
San Carlos, CA 94070
21 Jackie Zaneri, Esq.
Stephen A. Scott, Esq. Ethan Silverstein, Esq
22 Jessica E. Scott, Esq.
Marianne DeRitis esilverstein@calorganize.org
23 jzaneri@calorganize.org
Emails: sscott@hayesscott.com,
24 J Scott@hayesscott.com,
25 MDeRitis@HayesScott.com

26 Attorney for Defendant Conservice, LLC

9
EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CURIAE
1 SALINAS LAW GROUP
428 13th Street, Eighth Floor
2 Oakland, Califomia 94612
3
Robert Salinas
4
Email: bob@ssrplaw.com
5

8
I declare under penalty of perjury under the laws of the State of California that the above
9 is true and correct.
10 Executed on February 25, 2022, at Oakland, California.
11
Kevin Sar
12

26
27

10
EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CURIAE
Exhibit A
1 BARBARA J. PARKER, City Attorney, SBN 069722
MARIA BEE, Chief Assistant City Attorney, SBN 167716
2 LAURA LANE, Supervising Deputy City Attorney, SBN 184557
UBALDO FERNANDEZ, Deputy City Attorney, SBN 296112
3 One Frank H. Ogawa Plaza, 6th Floor
Oakland, California 94612
4 Telephone: (510) 238-7040 Fax: (510) 238-6500
Email: ufernandez@oaklandcityattorney.org
5

6 Attorneys for Defendant(s),
CITY OF OAKLAND
7

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF ALAMEDA
11

12 ANDREW YEN, JAMES BALL, KAITLIN Case No. RG21-100261
BLANCO, and MELINA TESSIER, on behalf of
13 themselves and all others similarly situated, ASSIGNED FOR ALL PURPOSES TO
HON. EVELIO GRILLO
14 Plaintiff(s), DEPARTMENT 21
v.
15 CITY OF OAKLAND’S AMICUS
NEVEO MOSSER, THE MOSSER CURIAE BRIEF
16 COMPANIES, INC., 553 SYCAMORE STREET
ASSOCIATES, LP, 1428 JACKSON STREET
17 ASSOCIATES, LP, CONSERVICE, LLC, FPI
MANAGEMENT, INC., OAK9 PORTFOLIO
18 OWNER, LP, OAK 406 VAN BUREN AVE
PROPERTY, LLC, OAK 553 SYCAMORE,
19 LLC, OAK1425 HARRISOON STREET
PROPERTY, LLC, OAK-1428 JACKSON, LLC,
20 PACH AFFORDABLE HOLDINGS, LLC,
YARDI SYSTEMS, INC, YES ENERGY
21 MANAGEMENT, INC, DOES one through five
hundred
22 Defendant(s).
23

24 I. INTRODUCTION

25 On November 5, 2021, this Court issued a ruling on Defendant’s Demurrer to Plaintiff’s First

26 Amended Complaint and invited the Rent Board to “independently investigate and address the

27 issues presented in these cases.” Court’s Order at 10. The Court’s Order requested that the Rent

28 Board opine whether “the Court has erred (1) in the interpretation of the Ordinance and

1
CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261
1 implementing regulations, (2) in accepting the allegation that the Landlords’ separately itemized

2 charges for water, sewer, and garbage removal are plausibly “not rent”, or (3) otherwise.” Id. In

3 response to this invitation, the Housing Residential Rent and Relocation Board of the City of

4 Oakland, by and through its attorney, submits this amicus brief.

5 This amicus cuiare brief clarifies that 1) shared, unmetered utilities are always “rent” subject

6 to the Residential Rent Adjustment Program Ordinance’s (the “Ordinance”) limitations; 2) the

7 Ordinance does not contain a requirement for administrative exhaustion; and 3) the private right

8 of action for violations of the Ordinance may be used to indirectly enforce the Rent Adjustment

9 Program Regulations (“the “Regulations”).

10 II. THE ORDINANCE PROHIBITS SEPARATELY BILLING TENANT FOR
SHARED UNMETERED UTILITIES
11

12 The Ordinance defines “Rent” as “the total consideration charged or received by an owner in

13 exchange for the use or occupancy of a covered unit including all housing services provided to the

14 tenant.”1 OMC 8.22.020. (Emphasis added). Housing services are, in relevant part, “all services

15 provided by the owner related to the use or occupancy of a covered unit, including, but not limited

16 to, insurance, repairs, maintenance, painting, utilities, heat, water. . . and any other benefits or

17 privileges permitted the tenant by agreement, whether express or implied . . . ” OMC 8.22.020.

18 The general rule derived from these definitions is that all housing services, including utilities such

19 as water, sewage, and garbage removal, are part of the what the landlord provides in consideration

20 for the payment of Rent.

21 The only exception to the general rule that all housing services are provided in exchange for

22 Rent is laid out in the Regulations. “The transfer of utility costs to the tenant by the landlord is not

23 considered as part of the rent increase unless the landlord is designated in the original rental

24 agreement to be the party responsible for such costs.” Regulation 10.1.9. (Emphasis added)

25 Importantly, it is not any housing service that may be carved-out from the Rent by agreement, but

26
1
Notably, to lawfully offer a residential unit for “use or occupancy” a landlord must provide
27 access to such utilities. Civil Code sec. 1941.1 (a)(3), (7). That a landlord could require
additional payments for these services required to be provided in exchange for rent is antithetical
28 statutory scheme of rent control.

2
CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261
1 only a utility. This utility carveout is subject to the limitation in Regulation 10.1.10: “When more

2 than one rental unit shares any type of utility bill with another rental unit, it is illegal to divide up

3 the bill between units . . . . If this is too expensive, then the property owner should pay the utility

4 bill himself/herself and build the cost into the rent.” Regulation 10.1.10. (Emphasis added).

5 The definitions of the Ordinance and Regulations 10.1.9 and 10.1.10, read together, form the

6 rule: Utilities are part of housing services and therefore part of what is provided in consideration

7 for Rent (O.M.C. 8.22.020), unless the rental agreement makes the tenant responsible for the utility

8 (Regulation 10.1.9) AND the bill for that utility is not shared or divided between rental units

9 (Regulation 10.1.10). A provision in a rental agreement making the tenant responsible for the

10 payment of a utility that is shared is barred by the Regulation 10.1.10. And waiver or modification

11 of the rent control scheme in a rental agreement is against public policy and void. O.M.C.

12 8.22.180.

13 If the landlord wishes to recuperate the cost of a utility but cannot satisfy the limited carveout

14 of Regulation 10.1.9 and does not wish to take on the expense of separately metering the utility,

15 then the landlord “should pay the utility bill himself/herself and build the cost into the rent.”

16 Regulation 10.1.10 (Emphasis added). “Rent” is “the total consideration charged or received by

17 an owner in exchange for the use or occupancy of a covered unit including all housing services

18 provided to the tenant.” OMC 8.22.020. Therefore, a landlord that wishes to recoup the cost of a

19 shared utility must “build the cost” into the “total consideration charged” to the tenant, which is

20 subject to the Ordinance’s limitations on rent increases.

21 The Court’s Order appears to similarly understand this limitation: “What the landlord cannot

22 do is to incur the costs and then on a monthly basis re-allocate the variable costs among the tenants

23 as “not rent.”” Court Order at 5. While accurate, this statement does not make clear that a landlord

24 also cannot simply re-allocate variable shared utility costs on a monthly basis in the form of “rent.”

25 Any increases made on the “rent” based on increased housing service costs, such as utilities, must

26 first be approved by a petition to the RAP. O.M.C. 8.22.065.A.

27 ///

28 ///

3
CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261
1 III. THE COURT’S ORDER IS INCONSISTENT WITH THE STATUTORY
SCHEME CREATED BY THE ORDINANCE AND REGULATIONS
2

3 If the Court is not convinced with the City’s interpretation of Regulations 10.1.9 and
4 10.1.10 based on their language and the definitions of “Rent” and “Housing Services,” the Court
5 should give these regulations meaning that will “render it reasonable, fair, and harmonious” with
6 the purpose of the Ordinance and the implementing Regulations to resolve any remaining
7 ambiguities. Huang v. Cheng (1998) 66 Cal.App.4th 1230, 1234.
8 The purpose of the Ordinance is to diminish the detrimental effect the shortage of decent,
9 safe, affordable and sanitary residential rental housing has on Oakland residents by limiting rent
10 increases. O.M.C 8.22.010.A, C.
11 The Ordinance creates stability for tenants by allowing owners only one rent increase each
12 year. OMC 8.22.070 A. 1. The yearly increase is limited to the CPI Rent Increase amount, unless
13 a petition is filed. O.M.C. 8.22.065. Such rent increase notice must be accompanied by the RAP’s
14 Notice of Rent Increase which informs the tenant of their rights. OMC 8.22.050, .070.
15 The Ordinance also seeks to allow landlords an “opportunity for both a fair return on their property
16 and rental income sufficient to cover the increasing cost of repairs, maintenance, insurance,
17 employee services, additional amenities, and other costs of operation” O.M.C 8.22.010.C. The
18 annual CPI rent increase is meant to account for these increasing housing service costs. If the CPI
19 increase is not sufficient to compensate the landlord for increased housing service costs, the
20 Ordinance allows a landlord to increase the rent for an amount greater than the CPI increase by
21 “first petition(ing) the Rent Program and receive(ing) approval for the Rent Increase.” O.M.C.
22 8.22.070.C.1.c.
23 A petition for a rent increase based on increased housing service requires compliance with
24 the implementing regulations. O.M.C. 8.22.070.C.2. The landlord has the burden to provide
25 extensive documentation and calculations showing that the increase in operating expenses from
26 one year to the next exceed the annual CPI Rent Increase. Regulations 10.1.1.; 10.1.5. The petition
27 for rent increase must take into account all of the housing service costs, and rent increases based
28 on increases in individual housing service cost items are explicitly prohibited 10.1.4. While a

4
CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261
1 landlord’s petition should not include utilities the tenant is responsible for paying, the landlord

2 may only separate out such utility costs in the lease is the utility is not shared between rental units.

3 Regulation 10.1.9; 10.1.10. If the owner wishes to recover the costs of the utilities they may install

4 individual meters or “pay the utility bill himself/herself and build the cost into the rent.” Regulation

5 10.1.10.

6 Even after a successful petition for a rent increase based on increased housing service costs,

7 the owner must serve a notice of rent increase, including a summary of the approved decision, on

8 the tenant. The rent increase is also subject to various other limitations of the Ordinance (only one

9 rent increase per year, no more than 10% rent increase per year, no more than 30% increase in any

10 five years. O.M.C. 8.22.070.A.1; A.2; A.3; D.2.a.; .070.H.3.a.

11 The statutory scheme can be summarized as follows: The landlord may increase the rent

12 once each year only for the CPI amount. In order to increase the rent for any greater amount, the

13 landlord first petition the RAP and prove their housing service costs were greater by submitting

14 detailed documentation and calculations subject to various rules and limitations.

15 The Court Order interprets the carveout of Regulation 10.1.9 so broadly as to swallow the

16 rule that Rent is paid in consideration for all housing services. This interpretation is at odds with

17 the Ordinance’s stated purpose of diminishing the detrimental effect the shortage of decent, safe,

18 affordable and sanitary residential rental housing has on Oakland residents by limiting rent

19 increases. O.M.C 8.22.010.A, C. If a rental agreement is permitted to carve out any identified

20 housing service from the definition of “rent”, unscrupulous landlords could escape the Ordinance’s

21 reach simply by making tenants responsible for a myriad of housing services in the rental

22 agreement. A landlord could have a contracted “rent” controlled by the Ordinance, and separately

23 charge various fluctuating and unregulated “non rent” fees for individual housing services. A

24 landlord could simply claim their “repair fee,” “maintenance fee,” “painting fee,” and “employee

25 service fee” are in addition to the controlled “rent” and vary them month to month without

26 limitation. This interpretation of the Regulations undermines the central concept of the Ordinance:

27 one contracted “Rent” provided “in exchange for the use or occupancy of a covered unit including

28 all housing services provided to the tenant.” O.M.C. 8.22.020. In substantial effect, the Court

5
CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261
1 Order allows landlords to opt out of Rent Control simply writing rental agreements that make

2 tenants responsible for individually listed housing services that will be considered unregulated

3 “non rent.”

4 The Court Order’s interpretation of Regulations 10.1.9 and 10.1.10 also puts landlords who

5 circumvent the Ordinance at an advantage over landlords who comply with the requirement to

6 petition RAP for rent increases based on increased housing costs. Landlords who follow the

7 requirements of the Ordinance must file a petition RAP, submit organized documentation and

8 calculations, limit their increases to once per month, and provide proper notice of the rent

9 increases. Under the Court’s Order, Landlords who do not wish to follow these requirements need

10 only include a provision in their rental agreement excusing them from doing so. Such a an

11 interpretation of Regulation 10.1.9 is at odds with the Ordinance’s prohibition against waiving

12 provisions of the Ordinance. See O.M.C. 8.22.180.

13
IV. THE ORDINANCE DOES NOT REQUIRE THAT TENANTS EXHAUST
14 ADMINISTRATIVE REMEDIES BEFORE FILING A CIVIL ACTION

15 The Ordinance allows violations to be “enforced administratively or by civil remedies” O.M.C.
16 8.22.150(A)(2). An aggrieved party may “bring a civil action for injunctive relief or damages, or
17 both, for any violation of the provisions of this Chapter or an order or decision issued by a Hearing
18 Officer or the Board.” O.M.C.8.22.150(C) (Emphasis added). While an aggrieved tenant “may”
19 also file a petition with the RAP, the Ordinance allows a tenant to commence lawsuit without first
20 exhausting their administrative re

Case Info

Judge

Brad Seligman Track Judge’s New Case

Case No.

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Document Filed Date

March 09, 2022

Case Filing Date

May 25, 2021

County

Parties

10/17/2023 03:30 PM Party
1428 Jackson Strret Associates, LP Def
1428 Jackson Strret Associates, LP Defendant
1428 Jackson Strret Associates, LP Party
1428 JACKSON STRRET ASSOCIATES, LP Defendant
553 Sycamore Street Associates, LP Def
553 Sycamore Street Associates, LP Defendant
553 Sycamore Street Associates, LP Party
553 SYCAMORE STREET ASSOCIATES, LP Defendant
Abraham Aleem Tabaie Attorneys for Defendants
Abraham Aleem Tabaie Attorney
Abraham Aleem Tabaie Party
Andrew Yen Party
Andrew Yen Plain
Andrew Yen Plaintiff
Anna S Mclean Att
Anna S Mclean Attorney
Anna S Mclean Attorney (lead Attorney)
Anna S Mclean Party
BALL, JAMES Plaintiff
Barbara Jean Parker Att
Barbara Jean Parker Attorney
Barbara Jean Parker Party
BLANCO, KAITLIN Plaintiff
City of Oakland Non-party
City of Oakland Party
City of Oakland Tpty
Conservice, LLC Def
Conservice, LLC Defendant
Conservice, LLC Party
CONSERVICE, LLC Defendant
Ethan L. Silverstein Attorneys for Plaintiffs
FPI Management, Inc. Def
FPI Management, Inc. Defendant
FPI Management, Inc. Party
FPI MANAGEMENT, INC. Defendant
George A. Guthrie Attorneys for Defendants
George A. Guthrie Attorney
George A. Guthrie Former Attorney (lead Attorney)
George A. Guthrie Party
GUTHRIE, GEORGE A. Attorneys for Defendants
James Ball Party
James Ball Plain
James Ball Plaintiff
Jeffrey Michael Vucinich Attorneys for Defendants
Jeffrey Michael Vucinich Attorney
Jeffrey Michael Vucinich Party
John M. Neukom Attorneys for Defendants
John M. Neukom Attorney
John M. Neukom Attorney (associated Attorney)
John M. Neukom Party
Kaitlin Blanco Party
Kaitlin Blanco Plain
Kaitlin Blanco Plaintiff
Katherine S Catlos Attorneys for Defendants
Katherine S Catlos Attorney
Katherine S Catlos Party
L Theodore Scheley, III Attorney
L Theodore Scheley, III - III Att
L Theodore Scheley, III - III Attorney
L Theodore Scheley, III - III Attorney (lead Attorney)
L Theodore Scheley, III - III Party
Melina Tessier Party
Melina Tessier Plain
Melina Tessier Plaintiff
MOSSER, NEVEO Defendant
NEUKOM, JOHN M. Attorneys for Defendants
Neveo Mosser Def
Neveo Mosser Defendant
Neveo Mosser Party
Oak 1425 Harrison Street Property, LLC Def
Oak 1425 Harrison Street Property, LLC Defendant
Oak 1425 Harrison Street Property, LLC Party
OAK 1425 HARRISON STREET PROPERTY, LLC Defendant
Oak 1428 Jackson, LLC Def
Oak 1428 Jackson, LLC Defendant
Oak 1428 Jackson, LLC Party
OAK 1428 JACKSON, LLC Defendant
Oak 406 Van Buren Ave. Property, LLC Def
Oak 406 Van Buren Ave. Property, LLC Defendant
Oak 406 Van Buren Ave. Property, LLC Party
OAK 406 VAN BUREN AVE. PROPERTY, LLC Defendant
Oak-553 Sycamore, LLC Def
Oak-553 Sycamore, LLC Defendant
Oak-553 Sycamore, LLC Party
OAK-553 SYCAMORE, LLC Defendant
Oak9 Portfolio Owner, LP Def
Oak9 Portfolio Owner, LP Defendant
Oak9 Portfolio Owner, LP Party
OAK9 PORTFOLIO OWNER, LP Defendant
Pach Affordable Holdings, LLC Def
Pach Affordable Holdings, LLC Defendant
Pach Affordable Holdings, LLC Party
PACH AFFORDABLE HOLDINGS, LLC Defendant
Robert A. Salinas Att
Robert A. Salinas Attorney
Robert A. Salinas Attorney (lead Attorney)
Robert A. Salinas Party
Robert Salinas Attorney
SALINAS, ROBERT Attorney
SCHELEY III, L THEODORE Attorney
Stephen Alter Scott Attorneys for Defendants
Stephen Alter Scott Attorney
Stephen Alter Scott Attorney (lead Attorney)
Stephen Alter Scott Party
Stephen A. Scott Attorneys for Defendants
TESSIER, MELINA Plaintiff
The Mosser Companies, INc. Def
The Mosser Companies, INc. Defendant
The Mosser Companies, INc. Party
THE MOSSER COMPANIES, INC. Defendant
Yardi Systems, Inc. Def
Yardi Systems, Inc. Defendant
Yardi Systems, Inc. Party
YARDI SYSTEMS, INC. Defendant
YEN, ANDREW Plaintiff
Yes Energy Management, Inc. Def
Yes Energy Management, Inc. Defendant
Yes Energy Management, Inc. Party
YES ENERGY MANAGEMENT, INC. Defendant
Joseph Sakai Attorney
Lloyd Scheley Attorneys for Defendants
Xiong Zhou Attorneys for Defendants
Leah Simon-Weisberg Attorney
Jacqueline Zaneri Attorney
Annie Banh Attorneys for Plaintiffs
Enrique Martinez Attorneys for Plaintiffs
Raza Rasheed Attorneys for Defendants
Kathryne Baldwin Attorneys for Defendants
Arielle Brown Attorneys for Defendants
Maria Bee Attorney
Ubaldo Fernandez Attorney
Arthur Friedman Attorneys for Defendants
Islam Ahmad Attorneys for Defendants
Jessica Su Attorneys for Defendants
Charles Tillage Attorneys for Defendants
Benjamin Chen Attorneys for Defendants
Daniel Marcus Attorneys for Defendants
Rocio Toriz Attorneys for Plaintiffs

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Motion,Ex Parte: Yen VS Mosser

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