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BARBARA J. PARKER, City Attorney, SBN 069722
MARIA BEE, Chief Assistant City Attorney, SBN 167716
LAURA LANE, Supervising Deputy City Attorney, SBN 184557
UBALDO FERNANDEZ, Deputy City Attorney, SBN 296112
One Frank H. Ogawa Plaza, 6th Floor p i [. F 1D)
Oakland, California 94612 ALAMEDA COUNTY
Telephone: (510) 238-7040 Fax: (510) 238-6500
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Email: ufernandez@oaklandcityattorney.org MAR 1 4 2022
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CLERK OFTH PERIOR COURT
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Attorneys for Proposed Amicus Curiae, By Deputy
CITY OF OAKLAND
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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10 COUNTY OF ALAMEDA
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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
IS 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; [PEOPSSED]
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).
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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
2d (“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,
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EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
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California. The City will, and hereby does, apply ex parte pursuant to California Rules of Court
3.1200 et seq. for a an order to granting to City of Oakland leave to filea brief as amicus curiae.
This application is brought on grounds that Code Civ. Proc. § 128, California Cal. Rules
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of Court, 8.882, and caselaw permits the participation of amicus curiae in Superior Court. See
generally, In re Marriage Cases (2008) 43 Cal.4th 757 and San Francisco Chamber of
Commerce v. City and County of San Francisco (1969) 275 Cal.App.2d 499. Further, this
Court’s Order of November 5, 2021 invited the City to opine on issues presented by this case.
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Prior to 10:00 a.m. on February 24, 2022, counsel for all parties were given notice of this
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Application as set forth in the Declaration of Ubaldo Fernandez, filed herewith.
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10 This Application is made based upon this Application, the Memorandum of Points and
1] 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 firstamended 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 at4-6. The Court Order required plaintiffs to serve
20 the Court Order on the Oakland Rent Board. Jd. at 10. The Court invited the Rent Board to, “in
21 its discretion, investigate and address the issues presented in these cases.” Jd. 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 itsprocess 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
21 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.” Jn re Marriage Cases
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EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
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(2008) 43 Cal.4th 757, 721 fn.10. The Court of Appeals has also recognized the right to
participate in the Superior Court as amicus curiae See, e.g., San Francisco Chamber of
Commerce v. City and County of San Francisco (1969) 275 Cal.App.2d 499, 505 (“Counsel for
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the proposed interveners were permitted to argue as amici curiae in both the superior court and
this court.”).
Ill. Amici Curiae Are Not Required To Submit Briefs By Noticed Motion
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California Rules of Court do not contain a process for submitting amicus curiae briefs in
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Superior Court. Applications for permission to file an amicus curiae briefs submitted in the
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
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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 filean 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.
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EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
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B. Proposed Amicus Curiae Brief Authorship
Ubaldo Fernandez, Deputy City Attorney, authored the proposed amicus brief in its
entirety. Declaration of Ubaldo Fernandez (“Fernandez Decl.”’) ¥ 5.
C. Monetary Contributions
No person or entity made any monetary contribution to fund the preparation of this brief
other than the proposed amicus curiae. Fernandez Decl. { 6.
V. Notice to Parties
On February 24, 2022, at approximately 9:17AM, Ubaldo Fernandez, counsel for
proposed amicus, notified by email counsel for allparties 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 filea
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. {ff 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.
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23 Dated: February 25, 2022 BA “L ARKER, City Attorney
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Ubaldo Fernandez, Deputy City Attorney
26 Attorneys for Proposed Amicus Curiae,
CITY OF OAKLAND
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EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
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DECLARATION OF UBALDO FERNANDEZ
I,Ubaldo Fernandez, declare as follows:
1. Iam not a party to this action. Iam a Deputy City Attorney for the City of Oakland,
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licensed to practice law in all courts in the state of California. The facts stated herein are based
on my personal knowledge and, if called as a witness, I could and would competently testify
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thereto.
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2. On November 18, 2021, Counsel for Plaintiffs, Robert Salinas, served the City of
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Oakland this Court’s November 5, 2022 order sustaining, with leave to amend, the demurrers to
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the complaint in this action (“Court Order”).
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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 fileas amicus curiae the brief attached to this declaration as Exhibit
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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. ]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 FPIManagement, 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.
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EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
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10. Pursuant to the proof of service filed with this motion, I also arranged for this
application to be served by e-mail to counsel for the parties in this case
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11. Before filing this application Ivisited “Department Information” internet page for
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Department 21 on The Alameda County Court’s Website.
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(https://publicrecords.alameda.courts.ca.gov/PRS/Case/DepartmentDetailInfo? DepartmentNumb
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er=21&Type=Complex). I understood from the “Department Information” page that itis the
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practice of Department 21 to decide ex parte applications on the papers. Therefore, I did not
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obtain a reservation number or hearing date before filing this application. If the Court deems that
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a hearing is necessary for deciding this ex parte application, I will make myself available for
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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, Ireceived an email stating that the plaintiff will not be
15 opposing my ex parte application.
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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.
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EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
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[PROPOSED] ORDER GRANTING THE CITY OF OAKLAND’S EX PARTE
APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE
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On February 25, 2022, the City of Oakland filed an ex parte application requesting an
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order granting leave to file a brief as amicus curiae. Having considered the papers and pleadings
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on file,and GOOD CASE APPEARING, the Court GRANTS the ex parte application and
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10 ORDERS that the City of Oakland’s Amicus Curiae brief be filed.
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12 IT IS SO ORDERED
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Dated: MAR 1 4 2022
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17 HONORABLE LIO GRILLO
ALAMEDA C TY SUPERIOR COURT
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EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CURTAR
PROOF OF SERVICE
Andrew Yen vy.Neveo Mosser
Alameda County Superior Court Case No. RG21-100261
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,
Oakland, California 94612. On the date set forth below, I served the within documents:
EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS
CURIAE; MEMORANDUM OF POINTS AND AUTHORITIES;
DECLARATION OF UBALDO FERNANDEZ; [PROPOSED] ORDER
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(0 By United States mail. I enclosed the documents in a sealed envelope or package
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addressed to the persons at the address(s)es listed below and (specify one):
(1 Deposited the sealed envelope with the United States Postal Service, with the
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postage fully prepaid.
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CL] Placed the envelope for collection and mailing, following our ordinary business
1] 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, itis deposited in the ordinary course of
business with the United States Postal Service, in a sealed envelope with postage
13 fully prepaid.
C(O 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.
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C1 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. Iplaced 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 (0 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.
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(0 By personal delivery. I personally delivered the document(s) to the person(s) atthe
22 address(es) listed below.
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EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
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CLAPP, MORONEY, VUCINICH, BEEMAN SHEPPARD, MULLIN, RICHTER &
and SCHELEY EAMPTON LLP
1111 Bayhill Drive, #300 Four Embarcadero Center, 17th Floor, San
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San Bruno, CA 94066 Francisco, CA 94111-4109
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L. Theodore Scheley III,Esq. Arthur J. Friedman, Esq.
Xong "Jackson" Zhou, Esq.
F&F
Joseph P. Sakai, Esq.
Linda Carcamo Anna S. Mclean, Esq.
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Emails: LCarcamo@clappmoroney.com,
Emails: afriedman@sheppardmullin.com,
xzhou@clappmoroney.com,
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jsakai@sheppardmullin.com, -
LCarcamo@clappmoroney.com
amclean@sheppardmullin.com
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Attorney forDefendants Neveo Mosser, The
Mosser Companies, Inc.,553 Sycamore Street Attorneys for Defendants Oak9 Portfolio Owner,
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Associates, LP, 1428 Jackson Street Associates, LP, Pach Affordable Holdings, LLC
LP, Oak 406 Van Buren Ave Property, LLC,
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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. Islam M. Ahmad, Esq.
14 John M Neukom, Esq.
Victoria Garner
Abraham A. Tabaie, Esq
15 Emails: gguthrie@wilkefleury.com,
iahmad@wilkefleury.com
16 Emails : raza.rasheed@skadden.com,
john.neukom@skadden.com,
VGamer@wilkefleury.com
17 abraham.tabaie@skadden.com Attorneys for Defendant FP]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 forDefendant Conservice, LLC
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EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
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SALINAS LAW GROUP
428 13th Street, Eighth Floor
Oakland, Califomia 94612
Robert Salinas
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Email: bob@ssrplaw.com
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I declare under penalty of perjury under the laws of the State of California that the above
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is true and correct.
10 Executed on February 25, 2022, atOakland, California. Keb,
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Kevin Sar
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EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261
CTUIRTAF.
Exhibit A
BARBARA J. PARKER, City Attorney, SBN 069722
MARIA BEE, Chief Assistant City Attorney, SBN 167716
LAURA LANE, Supervising Deputy City Attorney, SBN 184557
UBALDO FERNANDEZ, Deputy City Attorney, SBN 296112
One Frank H. Ogawa Plaza, 6th Floor
Oakland, California 94612
Telephone: (510) 238-7040 Fax: (510) 238-6500
Email: ufernandez@oaklandcityattorney.org
Attorneys for Defendant(s),
CITY OF OAKLAND
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
ANDREW YEN, JAMES BALL, KAITLIN Case No. RG21-100261
BLANCO, and MELINA TESSIER, on behalf of
themselves and all others similarly situated, ASSIGNED FOR ALL PURPOSES TO
HON. EVELIO GRILLO
Plaintiff(s), DEPARTMENT 21
V.
CITY OF OAKLAND’S AMICUS
NEVEO MOSSER, THE MOSSER CURIAE BRIEF
COMPANIES, INC., 553 SYCAMORE STREET
ASSOCIATES, LP, 1428 JACKSON STREET
ASSOCIATES, LP, CONSERVICE, LLC, FPI
MANAGEMENT, INC., OAK9 PORTFOLIO
OWNER, LP, OAK 406 VAN BUREN AVE
PROPERTY, LLC, OAK 553 SYCAMORE,
LLC, OAK1425 HARRISOON STREET
PROPERTY, LLC, OAK-1428 JACKSON, LLC,
PACH AFFORDABLE HOLDINGS, LLC,
YARDI SYSTEMS, INC, YES ENERGY
MANAGEMENT, INC, DOES one through five
hundred
Defendant(s).
I. INTRODUCTION
On November 5, 2021, this Court issued a ruling on Defendant’s Demurrer to Plaintiff’s First
Amended Complaint and invited the Rent Board to “independently investigate and address the
issues presented in these cases.” Court’s Order at 10. The Court’s Order requested that the Rent
Board opine whether “the Court has erred (1) in the interpretation of the Ordinance and
CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261
implementing regulations, (2) in accepting the allegation that the Landlords’ separately itemized
charges for water, sewer, and garbage removal are plausibly “not rent’, or (3) otherwise.” Jd. In
response to this invitation, the Housing Residential Rent and Relocation Board of the City of
Oakland, by and through itsattorney, submits this amicus brief.
This amicus cuiare brief clarifies that 1) shared, unmetered utilities are always “rent” subject
to the Residential Rent Adjustment Program Ordinance’s (the “Ordinance”) limitations; 2) the
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Ordinance does not contain a requirement for administrative exhaustion; and 3) the private right
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of action for violations of the Ordinance may be used to indirectly enforce the Rent Adjustment
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Program Regulations (“the ““Regulations”).
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Il. THE ORDINANCE PROHIBITS SEPARATELY BILLING TENANT FOR
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SHARED UNMETERED UTILITIES
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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.”! 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, itis not any housing service that may be carved-out from the Rent by agreement, but
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| 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 isantithetical
28 statutory scheme of rent control.
CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261
only a utility. This utility carveout is subject to the limitation in Regulation 10.1.10: “When more
than one rental unit shares any type of utility billwith another rental unit, itis illegal to divide up
the bill between units . .. .If this is too expensive, then the property owner should pay the utility
bill himself/herself and build the cost into the rent.” Regulation 10.1.10. (Emphasis added).
The definitions of the Ordinance and Regulations 10.1.9 and 10.1.10, read together, form the
rule: Utilities are part of housing services and therefore part of what is provided in consideration
for Rent (O.M.C. 8.22.020), unless the rental agreement makes the tenant responsible for the utility
(Regulation 10.1.9) AND the bill for that utility is not shared or divided between rental units
(Regulation 10.1.10). A provision in a rental agreement making the tenant responsible for the
10 payment of a utility that is shared isbarred 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 isto 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 inthe 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 //
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CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261
Il. THE COURT’S ORDER IS INCONSISTENT WITH THE STATUTORY
SCHEME CREATED BY THE ORDINANCE AND REGULATIONS
If the Court is not convinced with the City’s interpretation of Regulations 10.1.9 and
10.1.10 based on their language and the definitions of “Rent” and “Housing Services,” the Court
should give these regulations meaning that will “render itreasonable, fair, and harmonious” with
the purpose of the Ordinance and the implementing Regulations to resolve any remaining
ambiguities. Huang v. Cheng (1998) 66 Cal.App.4th 1230, 1234.
The purpose of the Ordinance is to diminish the detrimental effect the shortage of decent,
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
CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261
landlord’s petition should not include utilities the tenant is responsible for paying, the landlord
may only separate out such utility costs in the lease is the utility is not shared between rental units.
Regulation 10.1.9; 10.1.10.
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BARBARA J. PARKER, City Attorney, SBN 069722 MARIA BEE, Chief Assistant City Attorney, SBN 167716 LAURA LANE, Supervising Deputy City Attorney, SBN 184557 UBALDO FERNANDEZ, Deputy City Attorney, SBN 296112 One Frank H. Ogawa Plaza, 6th Floor p i [. F 1D) Oakland, California 94612 ALAMEDA COUNTY Telephone: (510) 238-7040 Fax: (510) 238-6500 BS Email: ufernandez@oaklandcityattorney.org MAR 1 4 2022 nH CLERK OFTH PERIOR COURT Dn Attorneys for Proposed Amicus Curiae, By Deputy CITY OF OAKLAND Ne mH SUPERIOR COURT OF THE STATE OF CALIFORNIA So 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 IS 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; [PEOPSSED] 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 2d (“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 CTIRTAR California. The City will, and hereby does, apply ex parte pursuant to California Rules of Court 3.1200 et seq. for a an order to granting to City of Oakland leave to filea brief as amicus curiae. This application is brought on grounds that Code Civ. Proc. § 128, California Cal. Rules wo of Court, 8.882, and caselaw permits the participation of amicus curiae in Superior Court. See generally, In re Marriage Cases (2008) 43 Cal.4th 757 and San Francisco Chamber of Commerce v. City and County of San Francisco (1969) 275 Cal.App.2d 499. Further, this Court’s Order of November 5, 2021 invited the City to opine on issues presented by this case. nN Prior to 10:00 a.m. on February 24, 2022, counsel for all parties were given notice of this ao Application as set forth in the Declaration of Ubaldo Fernandez, filed herewith. \O 10 This Application is made based upon this Application, the Memorandum of Points and 1] 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 firstamended 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 at4-6. The Court Order required plaintiffs to serve 20 the Court Order on the Oakland Rent Board. Jd. at 10. The Court invited the Rent Board to, “in 21 its discretion, investigate and address the issues presented in these cases.” Jd. 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 itsprocess 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 21 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.” Jn re Marriage Cases 2 EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261 CURTAR (2008) 43 Cal.4th 757, 721 fn.10. The Court of Appeals has also recognized the right to participate in the Superior Court as amicus curiae See, e.g., San Francisco Chamber of Commerce v. City and County of San Francisco (1969) 275 Cal.App.2d 499, 505 (“Counsel for Ww the proposed interveners were permitted to argue as amici curiae in both the superior court and this court.”). Ill. Amici Curiae Are Not Required To Submit Briefs By Noticed Motion Ww California Rules of Court do not contain a process for submitting amicus curiae briefs in nN Superior Court. Applications for permission to file an amicus curiae briefs submitted in the 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 filean 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 /II 3 EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261 CURTAR B. Proposed Amicus Curiae Brief Authorship Ubaldo Fernandez, Deputy City Attorney, authored the proposed amicus brief in its entirety. Declaration of Ubaldo Fernandez (“Fernandez Decl.”’) ¥ 5. C. Monetary Contributions No person or entity made any monetary contribution to fund the preparation of this brief other than the proposed amicus curiae. Fernandez Decl. { 6. V. Notice to Parties On February 24, 2022, at approximately 9:17AM, Ubaldo Fernandez, counsel for proposed amicus, notified by email counsel for allparties 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 filea 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. {ff 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. 21 22 23 Dated: February 25, 2022 BA “L ARKER, City Attorney 24 25 Ubaldo Fernandez, Deputy City Attorney 26 Attorneys for Proposed Amicus Curiae, CITY OF OAKLAND 27 28 4 EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261 CUIRTAR DECLARATION OF UBALDO FERNANDEZ I,Ubaldo Fernandez, declare as follows: 1. Iam not a party to this action. Iam a Deputy City Attorney for the City of Oakland, Ww licensed to practice law in all courts in the state of California. The facts stated herein are based on my personal knowledge and, if called as a witness, I could and would competently testify WN thereto. nD 2. On November 18, 2021, Counsel for Plaintiffs, Robert Salinas, served the City of Ny Oakland this Court’s November 5, 2022 order sustaining, with leave to amend, the demurrers to on the complaint in this action (“Court Order”). \o 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 fileas amicus curiae the brief attached to this declaration as Exhibit 14 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. ]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 FPIManagement, 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 CTIRTAR 10. Pursuant to the proof of service filed with this motion, I also arranged for this application to be served by e-mail to counsel for the parties in this case WN 11. Before filing this application Ivisited “Department Information” internet page for W Department 21 on The Alameda County Court’s Website. FSF (https://publicrecords.alameda.courts.ca.gov/PRS/Case/DepartmentDetailInfo? DepartmentNumb vn er=21&Type=Complex). I understood from the “Department Information” page that itis the Dn practice of Department 21 to decide ex parte applications on the papers. Therefore, I did not A obtain a reservation number or hearing date before filing this application. If the Court deems that ao a hearing is necessary for deciding this ex parte application, I will make myself available for \o 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, Ireceived an email stating that the plaintiff will not be 15 opposing my ex parte application. 16 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. 19 20 21 Ubaldo Fernandez b/ 22 23 24 25 26 27 28 6 EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261 CTIRTAR [PROPOSED] ORDER GRANTING THE CITY OF OAKLAND’S EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE DH On February 25, 2022, the City of Oakland filed an ex parte application requesting an NN order granting leave to file a brief as amicus curiae. Having considered the papers and pleadings Oo on file,and GOOD CASE APPEARING, the Court GRANTS the ex parte application and So 10 ORDERS that the City of Oakland’s Amicus Curiae brief be filed. 11 12 IT IS SO ORDERED 13 14 Dated: MAR 1 4 2022 15 16 17 HONORABLE LIO GRILLO ALAMEDA C TY SUPERIOR COURT 18 19 20 21 22 ao 24 25 26 27 28 7 EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261 CURTAR PROOF OF SERVICE Andrew Yen vy.Neveo Mosser Alameda County Superior Court Case No. RG21-100261 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, Oakland, California 94612. On the date set forth below, I served the within documents: EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF UBALDO FERNANDEZ; [PROPOSED] ORDER DN nN (0 By United States mail. I enclosed the documents in a sealed envelope or package ao addressed to the persons at the address(s)es listed below and (specify one): (1 Deposited the sealed envelope with the United States Postal Service, with the \o postage fully prepaid. 10 CL] Placed the envelope for collection and mailing, following our ordinary business 1] 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, itis deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage 13 fully prepaid. C(O 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 C1 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. Iplaced 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 (0 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 (0 By personal delivery. I personally delivered the document(s) to the person(s) atthe 22 address(es) listed below. 23 24 25 26 27 28 8 EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261 CTIRTAR CLAPP, MORONEY, VUCINICH, BEEMAN SHEPPARD, MULLIN, RICHTER & and SCHELEY EAMPTON LLP 1111 Bayhill Drive, #300 Four Embarcadero Center, 17th Floor, San N San Bruno, CA 94066 Francisco, CA 94111-4109 W L. Theodore Scheley III,Esq. Arthur J. Friedman, Esq. Xong "Jackson" Zhou, Esq. F&F Joseph P. Sakai, Esq. Linda Carcamo Anna S. Mclean, Esq. An Emails: LCarcamo@clappmoroney.com, Emails: afriedman@sheppardmullin.com, xzhou@clappmoroney.com, DH jsakai@sheppardmullin.com, - LCarcamo@clappmoroney.com amclean@sheppardmullin.com JN Attorney forDefendants Neveo Mosser, The Mosser Companies, Inc.,553 Sycamore Street Attorneys for Defendants Oak9 Portfolio Owner, Oo Associates, LP, 1428 Jackson Street Associates, LP, Pach Affordable Holdings, LLC LP, Oak 406 Van Buren Ave Property, LLC, So 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. Islam M. Ahmad, Esq. 14 John M Neukom, Esq. Victoria Garner Abraham A. Tabaie, Esq 15 Emails: gguthrie@wilkefleury.com, iahmad@wilkefleury.com 16 Emails : raza.rasheed@skadden.com, john.neukom@skadden.com, VGamer@wilkefleury.com 17 abraham.tabaie@skadden.com Attorneys for Defendant FP]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 forDefendant Conservice, LLC 27 28 9 EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261 CTIRTAR SALINAS LAW GROUP 428 13th Street, Eighth Floor Oakland, Califomia 94612 Robert Salinas Ff Email: bob@ssrplaw.com An DH NY Oo I declare under penalty of perjury under the laws of the State of California that the above So is true and correct. 10 Executed on February 25, 2022, atOakland, California. Keb, 11 Kevin Sar 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 EX PARTE APPLICATION FOR LEAVE TO FILE A BRIEF AS AMICUS RG 21-100261 CTUIRTAF. Exhibit A BARBARA J. PARKER, City Attorney, SBN 069722 MARIA BEE, Chief Assistant City Attorney, SBN 167716 LAURA LANE, Supervising Deputy City Attorney, SBN 184557 UBALDO FERNANDEZ, Deputy City Attorney, SBN 296112 One Frank H. Ogawa Plaza, 6th Floor Oakland, California 94612 Telephone: (510) 238-7040 Fax: (510) 238-6500 Email: ufernandez@oaklandcityattorney.org Attorneys for Defendant(s), CITY OF OAKLAND SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA ANDREW YEN, JAMES BALL, KAITLIN Case No. RG21-100261 BLANCO, and MELINA TESSIER, on behalf of themselves and all others similarly situated, ASSIGNED FOR ALL PURPOSES TO HON. EVELIO GRILLO Plaintiff(s), DEPARTMENT 21 V. CITY OF OAKLAND’S AMICUS NEVEO MOSSER, THE MOSSER CURIAE BRIEF COMPANIES, INC., 553 SYCAMORE STREET ASSOCIATES, LP, 1428 JACKSON STREET ASSOCIATES, LP, CONSERVICE, LLC, FPI MANAGEMENT, INC., OAK9 PORTFOLIO OWNER, LP, OAK 406 VAN BUREN AVE PROPERTY, LLC, OAK 553 SYCAMORE, LLC, OAK1425 HARRISOON STREET PROPERTY, LLC, OAK-1428 JACKSON, LLC, PACH AFFORDABLE HOLDINGS, LLC, YARDI SYSTEMS, INC, YES ENERGY MANAGEMENT, INC, DOES one through five hundred Defendant(s). I. INTRODUCTION On November 5, 2021, this Court issued a ruling on Defendant’s Demurrer to Plaintiff’s First Amended Complaint and invited the Rent Board to “independently investigate and address the issues presented in these cases.” Court’s Order at 10. The Court’s Order requested that the Rent Board opine whether “the Court has erred (1) in the interpretation of the Ordinance and CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261 implementing regulations, (2) in accepting the allegation that the Landlords’ separately itemized charges for water, sewer, and garbage removal are plausibly “not rent’, or (3) otherwise.” Jd. In response to this invitation, the Housing Residential Rent and Relocation Board of the City of Oakland, by and through itsattorney, submits this amicus brief. This amicus cuiare brief clarifies that 1) shared, unmetered utilities are always “rent” subject to the Residential Rent Adjustment Program Ordinance’s (the “Ordinance”) limitations; 2) the aD Ordinance does not contain a requirement for administrative exhaustion; and 3) the private right nN of action for violations of the Ordinance may be used to indirectly enforce the Rent Adjustment ao Program Regulations (“the ““Regulations”). Oo Il. THE ORDINANCE PROHIBITS SEPARATELY BILLING TENANT FOR Go 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.”! 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, itis not any housing service that may be carved-out from the Rent by agreement, but 26 | 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 isantithetical 28 statutory scheme of rent control. CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261 only a utility. This utility carveout is subject to the limitation in Regulation 10.1.10: “When more than one rental unit shares any type of utility billwith another rental unit, itis illegal to divide up the bill between units . .. .If this is too expensive, then the property owner should pay the utility bill himself/herself and build the cost into the rent.” Regulation 10.1.10. (Emphasis added). The definitions of the Ordinance and Regulations 10.1.9 and 10.1.10, read together, form the rule: Utilities are part of housing services and therefore part of what is provided in consideration for Rent (O.M.C. 8.22.020), unless the rental agreement makes the tenant responsible for the utility (Regulation 10.1.9) AND the bill for that utility is not shared or divided between rental units (Regulation 10.1.10). A provision in a rental agreement making the tenant responsible for the 10 payment of a utility that is shared isbarred 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 isto 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 inthe 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 // CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261 Il. THE COURT’S ORDER IS INCONSISTENT WITH THE STATUTORY SCHEME CREATED BY THE ORDINANCE AND REGULATIONS If the Court is not convinced with the City’s interpretation of Regulations 10.1.9 and 10.1.10 based on their language and the definitions of “Rent” and “Housing Services,” the Court should give these regulations meaning that will “render itreasonable, fair, and harmonious” with the purpose of the Ordinance and the implementing Regulations to resolve any remaining ambiguities. Huang v. Cheng (1998) 66 Cal.App.4th 1230, 1234. The purpose of the Ordinance is to diminish the detrimental effect the shortage of decent, 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 CITY OF OAKLAND’S AMICUS CURIAE BRIEF RG 21-100261 landlord’s petition should not include utilities the tenant is responsible for paying, the landlord may only separate out such utility costs in the lease is the utility is not shared between rental units. Regulation 10.1.9; 10.1.10.