Anderson v. City of Vacaville

Filed 2/28/07 Anderson v. City of Vacaville CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A city adopted an amendment to its mobile home rent control ordinance that modified the formula used in establishing automatic, inflation-indexed annual rent increases. A mobile home park owner did not comply with the new formula, and the tenants objected. At a rent review hearing, the owner claimed that the amendment was invalid because the city published a summary of the amendment when it was statutorily required to publish the entire text upon the laws enactment. Alternatively, the owner claimed that the raise in rent beyond the inflation-indexed amount was justified under the terms of the rent control law, which allows additional rent increases if reasonable under the circumstances. The hearing officer found the amendment valid and rejected the owners claim that the circumstances warranted a rent increase beyond the inflation-indexed amount. The superior court found that the record supported the hearing officers conclusions and entered a judgment denying the owners petition for a writ of administrative mandate. We affirm the judgment.

facts

The City of Vacaville (City) adopted a mobile home rent control ordinance in 1977. (City of Vacaville Ordinance No. 961.) The City declared it necessary to protect the owners and occupiers of mobile homes from unreasonable rent increases while at the same time, recognizing the need of the park owners to receive a fair return on their investment and rental increases sufficient to cover the increased cost of repairs, maintenance, insurance, upkeep and additional amenities. (City of Vacaville Ordinance No. 961,  1.) Initially, all rent increases were subject to review for reasonableness. (City of Vacaville Ordinance No. 961,  6(1).)

In 1987, the ordinance was amended to exempt from review specified annual rent increases calculated as a percentage of the current rate of inflation, as measured by the Consumer Price Index (CPI). (City of Vacaville Ordinance No. 1323,  3).) The exempted amounts were the greater of 3 percent or 100 percent of CPI where CPI is 5 percent or less; 75 percent of CPI where CPI is between 5 and 10 percent; and 66 percent of CPI where CPI is more than 10 percent. (City of Vacaville Ordinance No. 1323,  3).) In 2002, the City changed the CPI adjustment by amending the rent control ordinance. (City of Vacaville Ordinance No. 1669.) It is this 2002 amendment challenged on appeal. The ordinance now exempts an annual rent increase equal to 75 percent of CPI, regardless of the CPI rate. (City of Vacaville Ordinance No. 1669,  1.) A mobile home park owner may initiate a rent increase in excess of the inflation-indexed amount, but the increase is subject to review for reasonableness. (Vacaville Mun. Code  2.36.060, 2.36.130.)

Appellant Dorothy Anderson is the owner of Casa Grande Mobile Home Park (Casa Grande), a 153-space mobile home park in the City. Anderson refused to comply with the 2002 amendment, claiming it was void because the City published a summary of the ordinance when the law was adopted, rather than the entire text. (Gov. Code,  36933.) Anderson instituted rent increases in 2002 and 2003 equal to 100 percent of CPI rather than 75 percent of CPI, the lesser amount exempted under the 2002 amendment of the rent control ordinance.

Real parties in interest, the tenants residing at Casa Grande, initiated a rent review hearing by filing a petition with the City. Under procedures established by the rent control law, the City referred the tenants petition for arbitration. (Vacaville Mun. Code  2.36.060 et seq.) The park owner and tenants arbitrated the dispute in an evidentiary hearing lasting three days. The arbitrator issued his decision in April 2004.

The arbitrator granted Andersons 2002 rent increase and denied her 2003 rent increase. The finding was expressly based on equitable concepts. The arbitrator found that park owner Anderson had announced the 2002 increase before the ordinance was amended, and that she was unfairly impacted by confusing communications with the City about implementation of the amendment. The exact terms of the amendment to the rent control ordinance were clarified by 2003, the arbitrator found, thus requiring Andersons compliance for the 2003 rent increase. The arbitrator commented that publication of the 2002 amendment was not in exact technical compliance with the Government Code but rejected Andersons claim for invalidation of the amendment on that basis. The arbitrator found that the 2002 amendment was properly enacted, dismissed Andersons challenge to the manner of publication as hyper-technical, and founded his decision on the equitable considerations of when Anderson had sufficient notice of the amendment. Anderson was permitted a 100 percent of CPI increase for 2002, and limited to a 75 percent of CPI increase for 2003. The arbitrator concluded that the rent increases provided Anderson with a fair and reasonable return on her investment.

In July 2004, Anderson filed a petition for a writ of administrative mandate in the superior court. The City answered the petition and a resident of another City mobile home park, respondent Katherine Oppenheimer, intervened in the case to defend the rent control ordinance. In July 2005, the superior court denied the petition. The court found that the ordinance was properly published and constitutionally valid, and that the arbitrators award was supported by the Record. Anderson appealed.

discussion

Appellant Anderson raises two central claims on appeal: (1) the 2002 amendment to the rent control ordinance is invalid because the City published a summary of the amendment when it was statutorily required to publish the entire text upon the laws enactment; and (2) even if the amendment is valid, there is insufficient evidence warranting the arbitrators denial of a rent increase additional to the inflation-indexed amount permitted. We turn to a discussion of these claims.

A. Publication of a summary of the ordinance was authorized

The California Legislature requires that a city ordinance be published in a newspaper within 15 days after the ordinances passage. (Gov. Code,  36933, subd. (a).) This publication requirement may be satisfied by publishing a summary of a proposed ordinance or proposed amendment to an existing ordinance. (Gov. Code,  36933, subd. (c)(1).) An ordinance generally shall not take effect or be valid unless it is published or posted in substantially the manner and at the time required by the statute. (Gov. Code,  36933, subd. (b).)

More specifically, Government Code section 36933 provides as follows: (a) Within 15 days after its passage, the city clerk shall cause each ordinance to be published at least once, with the names of those city council members voting for and against the ordinance, in a newspaper of general circulation published and circulated in the city, or if there is none, he or she shall cause it to be posted in at least three public places in the city or published in a newspaper of general circulation printed and published in the county and circulated in the city. . . .[] (b) Except as provided in Section 36937, an ordinance shall not take effect or be valid unless it is published or posted in substantially the manner and at the time required by this section. [] (c) The publication or posting of ordinances, as required by subdivision (a), may be satisfied by either of the following actions: [] (1) The city council may publish a summary of a proposed ordinance or proposed amendment to an existing ordinance. The summary shall be prepared by an official designated by the city council. A summary shall be published and a certified copy of the full text of the proposed ordinance or proposed amendment shall be posted in the office of the city clerk at least five days prior to the city council meeting at which the proposed ordinance or amendment or alteration thereto is to be adopted. Within 15 days after adoption of the ordinance or amendment, the city council shall publish a summary of the ordinance or amendment with the names of those city council members voting for and against the ordinance or amendment and the city clerk shall post in the office of the city clerk a certified copy of the full text of the adopted ordinance or amendment along with the names of those city council members voting for and against the ordinance or amendment; or [] (2) If the city official designated by the city council determines that it is not feasible to prepare a fair and adequate summary of the proposed or adopted ordinance or amendment, and if the city council so orders, a display advertisement of at least one-quarter of a page in a newspaper of general circulation in the city shall be published at least five days prior to the city council meeting at which the proposed ordinance or amendment or alteration thereto is to be adopted. Within 15 days after adoption of the ordinance or amendment, a display advertisement of at least one-quarter of a page shall be published. The advertisement shall indicate the general nature of, and provide information about, the proposed or adopted ordinance or amendment, including information sufficient to enable the public to obtain copies of the complete text of the ordinance or amendment, and the names of those city council members voting for and against the ordinance or amendment.

The parties are agreed that this court must exercise its independent judgment in reviewing questions of law, including the question of the proper interpretation of this legislation governing publication of ordinances. (MHC Operating Limited Partnership v. City of San Jose(2003) 106 Cal.App.4th 204, 219.) To determine the intent of legislation, we first consult the words themselves, giving them their usual and ordinary meaning. [Citations.] When statutory language is . . . clear and unambiguous there is no need for construction, and courts should not indulge in it.   (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) The language is clear. A city ordinance must be published, and publication of a summary of the ordinance is an authorized method of publication.

Here, the City timely published a summary of the proposed amendment in advance of the council meeting at which the amendment was adopted, and likewise timely published a summary of the ordinance upon its adoption. The published notice fully complied with Government Code section 36933. The notice in the Vacaville Reporter, a newspaper of general circulation, stated that the amendment modifies the CPI formula used in establishing automatic rent increases for mobile home parks, listed the council members who voted for or against the ordinance, and advised the public that a copy of the ordinance was available for inspection in the clerks office. No more was required.[1]

There is no merit to appellant Andersons argument that the Government Code requires publication of the full text of an ordinance. In fact, the argument is difficult to comprehend given its conflict with the plain language of the statute. Andersons argument appears to be that Government Code section 36933, subdivision (a)s requirement of publication impliedly means full text publication, and subdivision (c) is an exception to the full text publication standard that permits summary publication only upon affirmative conduct by the city council, including a declaration of an intention to publish a summary and appointment of an official to draft the summary. The argument is untenable.

Government Code section 36933, subdivision (a) requires publication and subdivision (c) sets out authorized methods of publicationeither summary publication in a newspaper or, if an adequate summary is not feasible, then a display advertisement in a newspaper with information about the ordinance. While subdivision (a), if it stood alone, could imply a requirement of full text publication, the fact is that subdivision (a) does not stand alone. The statute includes subdivision (c), which states that [t]he publication or posting of ordinances, as required by subdivision (a), may be satisfied by either of the following actions, one of which is summary publication. In short, summary publication is not an exception to publication, as Anderson insists, but an expressly authorized method of publication. Nor is there any merit to Andersons argument that summary publication requires an affirmative declaration of intent by the city council to publish a summary rather than the full text of an ordinance. Summary publication is not a special exception to publication requiring extraordinary findings by a city council.

In a related argument, Anderson maintains that the terms of the ordinance required full-text publication. Anderson observes that the ordinance states: This ordinance shall be published once within fifteen (15) days after its adoption, in the Vacaville Reporter, a newspaper of general circulation in the City of Vacaville. (City of Vacaville Ordinance No. 1669,  6.) Nothing in the terms of the ordinance mandates full-text publication. The ordinance simply requires that the ordinance be published, in terms mirroring the Government Code. Summary publication was sufficient.

As a final challenge to the ordinances validity, Anderson contends that it conflicts with state law requiring 90 days notice to tenants of a mobile home rent increase, and at least 30 days notice for a change in the terms of a lease. (Civ. Code,  798.30, 827, subd. (a).) There is no conflict. The implementation provision of the ordinance allowed for a one-time rent adjustment without notice to the tenant, but that single adjustment did not change the terms of the lease and was not a rent increase. (City of Vacaville Ordinance No. 1669,  3.) The City Council, cognizant that rent increases may have been announced before the effective date of the ordinance amending the rent control law, permitted the park owner to collect July 2002 rent that had been set under the superseded law and to implement the new law in August 2002, with a rent adjustment to credit tenants for any overage charged in the July billing. (City of Vacaville Ordinance No. 1669,  3.) This one-time downward rent adjustment in the tenants favor was not in conflict with state law requiring notice for a rent increase or change of lease terms. (Civ. Code,  798.30, 827, subd. (a).)

B. The arbitrators denial of the requested rent increase is supported by substantial evidence

The arbitrator denied appellant Andersons request for a 2003 rent increase in excess of the inflation-indexed amount automatically permitted under the rent control ordinance. The arbitrator decided that the proposed rent increase was not reasonable under the circumstances given an array of considerations. (Vacaville Mun. Code  2.36.130, subd. (B).) Anderson concedes on appeal that the ordinance is facially constitutional in providing property owners a fair return on investment. Andersons dispute lies with the hearing officers specific factual findings when applying the rent control ordinance. Our review of the matter begins and ends with a determination of whether the hearing officers findings are supported by substantial evidence. (MHC Operating Limited Partnership v. City of San Jose, supra, 106 Cal.App.4th at p. 218-219.)

Substantial evidence does support the arbitrators findings. The arbitrator adhered to the terms of the rent control ordinance, which sets out a number of factors relevant to setting a reasonable rent that will assure the park owner a fair return on investment. (Vacaville Mun. Code  2.36.130, subd. (B).) The arbitrator concluded that the physical condition of the park, quantity and quality of maintenance and repairs performed during the last twelve months, increases or reduction in services and rental history of the park do not justify a rent increase exceeding the inflation-indexed raise authorized by the rent control law. (Vacaville Mun. Code  2.36.130, subds. (B)(1)(c), (B)(1)(d), (B)(1)(e).)

Appellant slights these findings and argues that the arbitrator should have considered other factors not specifically listed in the ordinance. Appellant relies upon evidence that Casa Grande rent is below market rent (the rate that would exist without rent control) and that Casa Grande has incurred operating expenses exceeding the rate of inflation. Appellant is correct that the arbitrator must consider all relevant factors, whether specifically listed or not, and free market rental rates and high operating expenses may be relevant to determining whether a proposed rent increase is reasonable under the circumstances. (Vacaville Mun. Code  2.36.130, subd. (B)(1).)

However, appellant is incorrect in maintaining that the arbitrator was required to accept her experts uncontradicted opinion that Casa Grandes rent rates were below free market rates. As a general rule, [p]rovided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.] This rule is applied equally to expert witnesses. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.)

A trier of fact is also free to assess the evidence underlying the experts opinion. Here, the expert relied upon a rent survey of Casa Grande and other City mobile home parks to opine that Casa Grandes free market rate was $495, the highest rate paid at the property, because that was the rate paid when rent control restrictions were lifted for new tenants. The arbitrator was impressed by another element of the survey. The rent survey showed that the average rent for 10 City mobile home parks ranged from $218 to $430. Casa Grandes average rent was $416, which led the arbitrator to conclude that the rents at Casa Grande are fair, reasonable and if anything, on the high side of comparable mobile home rent in other parks located in Vacaville. The arbitrator was free to draw this conclusion from the evidence. He was not compelled, as appellant contends, to accept the experts opinion about Casa Grandes free market rate and disregard comparable average rates charged by other mobile home parks.

In any event, the experts opinion on free market rent, even if fully accepted, did not compel the conclusion that appellant was entitled to a rent increase. The formula established by the rent control law requires a consideration of multiple factors, which the arbitrator undertook. The arbitrator was not required to accord the factors of free market rental rate and high operating expenses greater weight than the other factors enumerated in the ordinance. The ultimate question was whether a rent increase additional to the inflation-indexed raise was necessary to assure appellant a fair and reasonable return on her investment. (Vacaville Mun. Code  2.36.130, subd. (B)(1).) Substantial evidence, under a multitude of factors, supports the arbitrators finding that appellant was properly limited to the inflation-indexed rent increase.

disposition

The judgment is affirmed.

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Sepulveda, J.

We concur:

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Reardon, Acting P.J.

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Rivera, J.

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[1] In the trial court, the City augmented the administrative record with evidence about its custom and practice in publishing legal notices, and Anderson objects that this evidence was wrongly admitted. The validity of the City ordinance is established without recourse to the disputed evidence, which we have disregarded on appeal.