SFAA v. CCSF (2018): City’s “Educator” Eviction Defense Upheld as “Substantive” Rather Than “Procedural”

Thus, under Birkenfeld, municipalities may by ordinance limit the substantive grounds for eviction by specifying that a landlord may gain possession of a rental unit only on certain limited grounds. But they may not procedurally impair the summary eviction scheme set forth in the unlawful detainer statutes. The Property Owners argue the Ordinance is procedural because it governs the timing of notices of eviction: ‘The Ordinance does not limit the allowable justifications for evicting tenants; it only delays certain evictions.’ Such questions of timing, they contend, are purely procedural. The City argues the Ordinance is substantive because timing is merely a component of the substantive defense to eviction: ‘When the household to be evicted includes a child under the age of 18 or an ‘educator’ within the terms of the Ordinance, ‘good cause’ for a landlord to undertake any of the specified types of no-fault evictions does not exist unless the eviction is to take effect during the summer months.’ As this case illustrates, the distinction between procedure and substantive law can be shadowy and difficult to draw in practice.

In SFAA v. CCSF, Division Five of the First District Court of Appeal overturned the SF Housing Court’s order mandating that the City not enforce a 2016 amendment to the Rent Ordinance (Ordinance 55-16) that created a substantive defense to certain non-fault evictions for “educators”.

A previous, unchallenged amendment to the Rent Ordinance provided that landlords could not terminate the tenancy of a rental unit where a school aged child resided (with some exceptions), if the notice expired during “the school year”. This amounted to a longer-than-usual notice period, where state law provides for 60 days notice, and the school year could extend this timeline by many months. (The delay could last even longer where challenges to unlawful detainer complaints may find a technical but “fatal” defect after months of litigation, with insufficient time to re-serve the notice until the next school year break.

When Ordinance 55-16 expanded this protection to “educators”, the San Francisco Apartment Association and the Small Property Owners of San Francisco challenged the notice on preemption grounds: state law controls the timing of notices of termination. This challenge hazarded the line between substantive eviction controls (allowable at the local level) and procedural eviction timing (reserved to state law, which occupies the field of this area of law).

The First District recognized prohibited procedural limits on evictions. The quintessential one being Berkeley’s “eviction certificates”, which the Supreme Court found to be preempted by the unlawful detainer statutes – in 1976’s Birkenfeld v. Berkeley – when California rent control law was still young. However, the Court likened the educator ordinance to another First District case – Rental Hous. Ass’n of N. Alameda Cty. v. City of Oakland (2009) 171 Cal. App. 4th 741 – which found permissible a “notice to cure” imposed as a prerequisite to a fault-based eviction.

The Court did concede that the line between procedural and substantive can be “shadowy and difficult to draw in practice”. However, it disregarded the Property Owners’ contention that the educator ordinance “restricts when the landlord may recover possession”. With no sense of irony, it likened the law to other “permissible” limits on evictions, like “when” the tenant is a member of a protected group, such as being catastrophically ill, or “when” a comparable unit owned by the landlord is vacant and available.

It’s difficult to read this as anything other than wordplay, especially “when” a particular “category” of defendant necessarily carries with it a timeline for initiating the state-dictated procedural process to terminate a tenancy. The Property Owners urged, for instance, that the City could similarly protect service industry workers during the tourist season. (Perhaps this is also a worthy class to protect, but it would still delay procedure set at the State level.) The Court appeared to brush off this concern, noting that it may be shored up by sufficient legislative findings. In response to the Property Owners’ argument that this authority would enable the City to designate an “eviction day”, outside of which a notice could not expire, the Court hinted that this would only be a problem if the City so limited all methods of eviction to such an “eviction day”. And this may have been needlessly narrow analysis, where the Court went on to disregard timing limitations on the Ellis Act as analogous here. (The tacit conclusion then is that “eviction day” limitations are fine, as long as they limit all other forms of eviction than the Ellis Act, which is unique as a state-mandated substantive ground for eviction.)

Ultimately, this case does not succeed in bringing the “shadowy line” into the light. The ability to regulate the substantive grounds for eviction is well-within a city’s permissible police power. However, SFAA v. CCSF opens the door for impermissible procedural protections to survive preemption analysis as long as they are properly adorned as “substantive”.