News

Wanted: More applicants for rent-control board

Qualifications: Must be a Mountain View landlord

It didn't quite rise to the level of naming a new justice to the U.S. Supreme Court -- but at times the Mountain View City Council's Feb. 21 meeting sure did resemble that kind of ordeal.

Council members were scheduled to pick their top candidates for Mountain View's new Rental Housing Committee, the powerful new panel in charge of implementing Measure V, the rent control measure. Rent control will affect thousands of apartments in the city but its implementation has been delayed by a lawsuit filed by a landlord group.

After putting candidates through two rounds of questionnaires and in-person interviews, council members based their selections primarily on a basic litmus test -- is the candidate pro-renter or pro-landlord?

The analogy came full circle at the start of the meeting as Councilman Chris Clark explained he wanted a balance of two picks on the renter side, two on the landlord side with a fifth person playing the "Justice Kennedy" role in the middle. The council's selection for the rental committee seemed to fit that mold as members voted in turn for six candidates (five regular committee members plus one alternate).

Those picks included two renters: Emily Ramos and Evan Ortiz, an organizer with the Mountain View Tenants Coalition; a couple of homeowners in the political middle: James Leonard and Julian Pardo de Zela; and two on the landlord side: Matthew Grunewald, the owner of a San Francisco rental property and former Councilman Tom Means, who owns a home and publicly opposed rent control.

But despite naming those picks, the council left plenty of questions up in the air. Which of the six candidates would be the alternate? When would they formally appoint the rental housing committee? And the big one -- Could the council go back to square one to seek exactly the kind of candidate they wanted?

Three council members signaled they were dissatisfied with the candidate pool and wanted to open a new round of applications to specifically seek a local landlord. As the meeting stretched into the late hours, council members Margaret Abe-Koga, Lisa Matichak and John McAlister warned that the candidates before them did not sufficiently represent the apartment owners in Mountain View.

"I'm concerned about the lack of diversity. We don't have someone who has rental units that are subject to (Measure V)," Matichak explained. "It's not lost on me that Measure V passed, but it's also not lost on me how important this committee is."

Exactly who joins the initial rental housing committee is crucial since that first group will set the standard for how rigorously the city will enforce its rent-control program. Among its responsibilities, the board will hire staff, define a fair profit margin for landlords and determine how independently the committee will function from the City Council. As part of the language of Measure V, the council is prohibited from appointing to the committee more than two landlords, property manager or realtors, but the measure doesn't specify any minimum number of representatives from those stakeholders.

Concerns about a lack of landlord representation on the committee were stoked by a letter-writing campaign from apartment owners ahead of the Feb. 21 meeting. Curtis Conroy, who owns seven apartments in Mountain View, explained that he and many of his colleagues were barred from serving on the rental committee since they live outside the city.

"Not one of the nine remaining applicants is a landlord of a Mountain View property," he said. "That this could have happened demonstrates that the drafters (of Measure V) did not have reasonable fairness in mind."

None of the original 17 candidates who applied for a committee seat own a Mountain View apartment property, although many owned local homes and rental property in other areas. The rest of the council pointed out that it wasn't the city's fault if landlords had declined to participate. City Housing Department staff pointed out that during the one-month application period they took out advertisements, posted fliers and reached out to the local California Apartment Association and the Silicon Valley Association of Realtors to encourage more candidates to apply.

"We put this call out, and the landlords had every opportunity to apply, and they didn't," said Councilwoman Pat Showalter. "I feel like the rules have been out there; we haven't obscured what the qualifications are."

Showalter made a motion to appoint the six members who received the most votes at a future date.

For now, the city is blocked from formally appointing committee members as long as a court-ordered restraining order remains in effect from a lawsuit by the California Apartment Association.

That lawsuit is scheduled for its first major hearing on March 14, when a judge will take up the apartment association's request to continue blocking rent control. If that request is denied, then Mountain View must begin implementing Measure V and appoint the rental committee to oversee it.

Local rent-control advocates expect the hold on Measure V to be lifted shortly. Just last week, a similar rent-control measure in Richmond was allowed to go forward after a Contra Costa County judge denied a similar delay request by the apartment association.

In that scenario, Housing Director Wayne Chen said he would like to have the rental committee ready to meet by mid-April. Abe-Koga assured her colleagues that should provide enough time for the city to reopen applications and interview new candidates.

Clark tried to split the difference. He proposed that the council stick with its current list of six candidates and appoint them if the court reached a decision right away. But if more time were provided, he recommended the council could request more applications, specifically for local landlords.

"If we have the luxury of additional time and we request specifically for a Mountain View landlord, then I'm OK with that," he said.

The council approved Showalter's motion, with the friendly amendment by Clark, in a unanimous vote.

Comments

6 people like this
Posted by Absurd
a resident of Monta Loma
on Feb 24, 2017 at 12:33 pm

It's completely absurd that the council will appoint a vocal opponent of rent control, Tom Means, to the committee. This is like Trump's cabinet nominations to the Department of Education and EPA, putting people in charge of organizations they are fundamentally opposed.


19 people like this
Posted by Logical Outcome
a resident of North Whisman
on Feb 24, 2017 at 7:12 pm

Kudos to the Council for trying to balance the overly tilted and over reaching Measure V.
The simple majority that voted for it, benefits from it financially directly and materially at the expense of a minority group unjustly singled out by circumstance. This majority lacks credibility when it comes to enforcement due to its inherent financial conflict. The Council is doing its job by ensuring fair enforcement will occur without blatant conflict of interest. This had to be the thinking behind agreement to the TRO, they did not want it to get out of control without a means to enforce it fairly for the good of the City, which takes precedent over the short term benefit of rollback that many Measure V backers are upset about. Once a local landlord is on board, fair judgement will be more likely.


1 person likes this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Feb 25, 2017 at 4:20 am

The Business Man is a registered user.

Hello all,

My understanding is that the CSFRA board has the following rules regarding its composition:

SECTION 1709.

RENTAL HOUSING COMMITTEE

(a) Composition. There shall be in the City of Mountain View an appointed Rental Housing Committee comprised of Mountain View residents as set forth in this Section. The Committee shall consist of five (5) Committee members appointed by the City Council, and an alternate Committee member. The alternate Committee member shall be permitted to attend all Committee meetings and to speak, but not be authorized to vote unless a regular member of the Committee is absent at that meeting or is recused from voting on an agenda item. THERE SHALL BE NO MORE THAN TWO (2) MEMBERS OF THE COMMITTEE THAT OWN OR MANAGE ANY RENTAL PROPERTY, OR THAT ARE REALTORS OR DEVELOPERS. ANYONE NOMINATED TO THIS COMMITTEE MUST BE IN COMPLIANCE WITH THIS ARTICLE AND ALL OTHER LOCAL, STATE AND FEDERAL LAWS REGULATING THE PROVISION OF HOUSING. Annually, the Committee shall elect one of its members to serve as chairperson.

(b) Eligibility and Appointment. Committee members shall be appointed by the City Council at a public meeting. Applicants for membership on the Committee shall submit an application to the City Council. The application shall include a statement under penalty of perjury of the applicant's interests and dealings in real property, including but not limited to, ownership, trusteeship, sale, or management, and investment in and association with partnerships, corporations, joint ventures, and syndicates engaged in ownership, sale, or management of real property during the three years immediately prior to the applicant’s application. This documentation shall be made available to the public. “

So as far as the city councils input on the composition of the board, they have no choice but to allow only 2 members to be in the business of real estate and rental properties.

As far as the report here stating:

“Concerns about a lack of landlord representation on the committee were stoked by a letter-writing campaign from apartment owners ahead of the Feb. 21 meeting. Curtis Conroy, who owns seven apartments in Mountain View, explained that he and many of his colleagues were barred from serving on the rental committee since they live outside the city.

"Not one of the nine remaining applicants is a landlord of a Mountain View property," he said. "That this could have happened demonstrates that the drafters (of Measure V) did not have reasonable fairness in mind."”

From what I read here in the CSFRA does not forbid an out of town landlord from applying and being a member of the board. I am surprised that Curtis Conroy would make such a statement that is in fact not true.

However, my suspicion is that any landlord when they apply for the CSFRA board, a part of the job application requires disclosure of if there is a criminal history of the applicant. This requirement to disclose may be a substantial block disqualifying the applicant from participation. I suspect that this is the actual cause of lack of landlord applicants. And even more likely, since it is a voluntary position, you do not get paid to participate, those who do not live in Mountain View who are landlords would only participate if they were paid for the work. The reasons why citizens of Mountain View are willing to do this work with no pay is because they live here.


2 people like this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Feb 25, 2017 at 4:21 am

The Business Man is a registered user.

Posted by Logical Outcome

Kudos to the Council for trying to balance the overly tilted and over reaching Measure V.

The simple majority that voted for it, benefits from it financially directly and materially at the expense of a minority group unjustly singled out by circumstance. This majority lacks credibility when it comes to enforcement due to its inherent financial conflict. The Council is doing its job by ensuring fair enforcement will occur without blatant conflict of interest. THIS HAD TO BE THE THINKING BEHIND AGREEMENT TO THE TRO, THEY DID NOT WANT IT TO GET OUT OF CONTROL WITHOUT A MEANS TO ENFORCE IT FAIRLY FOR THE GOOD OF THE CITY, WHICH TAKES PRECEDENT OVER THE SHORT TERM BENEFIT OF ROLLBACK THAT MANY MEASURE V BACKERS ARE UPSET ABOUT. Once a local landlord is on board, fair judgement will be more likely.


I just learned about this regarding our City Attorney:

The City Council chose Jannie Quinn to take the reins as Mountain View's City Attorney after she did the job on an interim basis for the first half of the year.

The council approved an employment agreement with Quinn Tuesday night which includes a $215,000 base salary. In contrast, her predecessor Michael Martello was paid $235,000 in his final year. Quinn may also receive annual pay increases in return for good performance.

Council member John Inks said he supported Quinn's appointment, adding that it was a near unanimous decision on the council. He would not support her employment agreement, however, saying her salary was too high. But member Laura Macias disagreed, saying "she's worth every penny."

"I am honored the council has appointed me," Quinn said in an email. "I find being a City Attorney exciting and challenging and feel very fortunate to have this opportunity."

Quinn, formerly the assistant city attorney, was appointed interim city attorney when Martello retired from the job at the end of last year. After observing her performance as interim city attorney, the council decided she was a good fit for the job on May 25 and decided to forgo the expense of searching for other candidates.

"We decided after the six months she had been doing a great job," said council member Mike Kasperzak, a trial lawyer himself for 11 years. "We did not see the need to go out and go through the expense of a search just to find the person we had already was as good or better than everybody else."

Kasperzak described Quinn as "very conscientious, energetic and articulate. I think she has strong attention to detail and is able to explain legal terminology in lay terms. She is a good researcher" and has "good legal instincts. Those are the sorts of skills I think are important."

Kasperzak said Quinn would be able to carry on the legacy of Martello, who "was not a city attorney who was afraid to get involved in issues. THERE ARE A LOT OF CITY ATTORNEYS WHO ARE OVERLY CAUTIOUS AND DON'T WANT TO ROCK THE BOAT."

As city attorney, Quinn will run a legal department with three other attorney positions and two code enforcement officers. Quinn says she has had an increasingly wide range of exposure to municipal law in her 14 years with the city, where she has supervised code enforcement, filled in for Martello at City Council meetings and played a role in significant legal battles, including a lawsuit with AT&T over the city's cable services.

"I'm very proud of our office," Quinn said. "I think it runs very well and I think our council is very happy with it."

Quinn has been with Mountain View since 1995, when she was hired as senior deputy city attorney. Before coming to Mountain View she worked for one year with the city of San Jose and two years with San Jose law firm Robinson and Wood, where she said her first two cases out of law school were for the city of Mountain View.

Quinn got her law degree from the University of San Diego in 1988. She lives in San Jose with her husband and two sons, ages 14 and 17.( Web Link)

This report indicates 2 facts.

Fact 1, Mike Kasperzak was instrumental in getting her a job that makes her a millionaire after 5 years. Thus she has a deep debt to pay to him. At this time, I believe an audit of her work to determine if she has provided preferential treatment to certain claims against the city. She seems to beat up those who are no represented by an attorney, but when challenged by a reasonably good attorney, she tends to capitulate. This is exactly what she did in the CAA case, she simply behaved like a good girl and let the CAA go unchallenged regarding rent control and rent rollback. The simple history is that Mike Kasperzak has fought for the interests of the CAA from the very beginning, and he used his influence to establish preferential treatment to it.

I have no argument that if the City Attorney was not an employee of a governmental body, she could act in such a way. But given she is obligated as a local governmental agent, she is required to ensure that substantive and procedural due process regarding any legal case in her scope of employment must be satisfied. From what I can see here, she has in fact acted to subvert due process, and at the same time, prevent equal enforcement of the law from being carried out by NOT following the letter of the law. Her initial actions were not based on any legal basis, but on the basis of being a loyal beneficiary of a benefactor and nothing else.

Fact 2, she used her office to selectively attack John Inks for ethics violations, which on its face appears to be as result of his criticism of her original pay rate proposed in 2010. This is an abuse of her power. I noticed she never investigated Mike Kasperzak for any conflict of interest. There is more than ample prima facie evidence to warrant it.

At this point I seriously question the integrity of her work, and it should be audited by an independent legal group to determine if there is indeed a statistically proven disparate treatment or impact regarding her offices work?


3 people like this
Posted by Not the business man
a resident of Blossom Valley
on Feb 25, 2017 at 6:21 am

Maybe this part of measure V is relevant business man.


"RENTAL HOUSING COMMITTEE

(a) Composition. There shall be in the City of Mountain View an appointed Rental Housing Committee comprised of Mountain View residents as set forth in this Section."


Like this comment
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Feb 25, 2017 at 12:30 pm

The Business Man is a registered user.

Not the business man,


I am feeling VERY STUPID. But I DESERVE IT.


Thank you so much for correcting me. As of this time I have made 4 serious mistakes during my contributions here. I have no problems with that fact, I never claimed to be perfect.


This does make sense to me. A non-resident of Mountain View should not have governmental authority over citizens of Mountain View. Not only that, but since when should a person who does not live in Mountain View have any say in the local governmental affairs of the City of Mountain View as well. Their constitutional rights as a voter are designated by where they live, they cannot have "dual-citizenship" simply because they may own land or a building in another town.

Your correction perhaps explains that there may be a very small minority of the landlords of Mountain View that actually live in Mountain View. This reminds me of the song "Things that make you go, hmmm?"

My observation is this. The property owners of Mountain View live in locations where they have MUCH lower cost of living with regards to housing, perhaps even rent control, but then use the lack of it in Mountain View against their tenants. NOT to say this is not legal, it is perfectly legal.

Since the City of Mountain View does not have a public access registry of apartment ownership, we cannot determine what the nature of the property ownership is.

However, this could be another method to sabotage the CSFRA, if the landlords boycott the board, the board cannot be formed. Now if that is in fact the strategy, it can backfire. The CAA can make a legal argument that the board not being formed invalidates the law. But this can be a VERY dangerous plan of attack. Given that the CSFRA has a severability clause. If they succeed in preventing the board from working, the courts can simply remove the board alone, but leave the rest of the CSFRA intact. That would eliminate any chances of the CAA members from getting any rent adjustments at all. But since the CAA forced the court to take this action, the court cannot then determine that the Citizens of Mountain View are the CAUSE of such removal of due process, because THAT action was made by THE COURT and NOT the city of Mountain View.

Thanks for correcting me


7 people like this
Posted by Yes business man
a resident of Monta Loma
on Feb 25, 2017 at 1:16 pm

by your own logic, since when should a person who does not own property be able to dictate what they pay to live on said property?


Like this comment
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Feb 25, 2017 at 1:33 pm

The Business Man is a registered user.

yes business man.

A citizen has absolute discretion over the local public policy in the US. As long as said policy is not contradicted by the US Constitution. I am sorry to remind you of this. Under your implied reasoning, only those who own property should have a political monopoly on public policy. If this logic is filled, this would result in an indentured or slave class in the US.

I am not surprised you would argue that slavery should be reinstated to those who do not own the home they reside in, regarding their right to define what the public economic policies are adopted. But that is what you seem to propose.


4 people like this
Posted by Correlation?
a resident of Another Mountain View Neighborhood
on Feb 25, 2017 at 1:35 pm

Any correlation between these votes and late/past campaign contributions?

Web Link


Like this comment
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Feb 25, 2017 at 4:48 pm

The Business Man is a registered user.

Correlation,

I can see someone is paying very good attention to whats happening behind the curtain.


Like this comment
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Feb 26, 2017 at 1:39 am

The Business Man is a registered user.

WARNING THIS IS A LONG ONE BUT IT IS IMPORTANT:

This is the text of the denial of the preliminary injunction order by the Contra Costa Court. It in effect totally destroys the validity of the current legal actions taken by the CAA. The CAA attorney simply failed to provide any proof on point to justify the injunction, and the text definitely indicates that the validity of the complaint is similarly in trouble. The decision states:

IT IS, THEREFORE, ORDERED;

Plaintiff California Apartment Association's motion for a preliminary injunction is denied.

Standard for Granting a Preliminary Injunction

"[A] prelimina,y injunction is an order that is sought by a plaintiff prior to a full adjudication of the merits o its claim. (See 6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies,§ 287, p. 228.) To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits. (See City o/Torrance v. Transitional Living Centers for Los Angeles, Inc. (1982) 30 Cal.3d 516, 526.) [1] PAST CALIFORNIA DECISIONS FURTHER ESTABLISH THAT, AS A GENERAL MATTER, THE QUESTION WHETHER A PRELIMINARY INJUNCTION SHOULD BE GRANTED INVOLVES TWO INTERRELATED FACTORS: (1) THE LIKELIHOOD THAT THE PLAINTIFF WILL PREVAIL ON THE MERITS, AND (2) THE RELATIVE BALANCE OF HARMS THAT IS LIKELY TO RESULT FROM THE GRANTING OR DENIAL OF INTERIM INJUNCTIVE RELIEF." (WHITE V. DAVIS (2003) 30 CAL.4TH 528, 554.)

The City argues that Plaintiff must show irreparable harm. In Loder v. City of Glendale (1989) 216 Cal.App.3d 777, the court reversed a trial court's granting of a preliminary injunction because the plaintiff had not shown irreparable injury. LODER WAS A TAXPAYER LAWSUIT AND THE COURT HELD THAT THE TAXPAYER'S HARM IS FINANCIAL IN NATURE AND THUS INSUFFICIENT TO SHOW IRREPARABLE INJURY. LODER MAKES CLEAR THAT THE COURT SHOULD CONSIDER IRREPARABLE HARM WHEN RULING ON A MOTION FOR A PRELIMINARY INJUNCTION, AND THAT THE FAILURE TO SHOW IRREPARABLE HARM IS A VALID REASON TO DENY A PRELIMINARY INJUNCTION. (ID AT P. 786.)

Plaintiff attempts to distinguish Loder as a holding unique to taxpayer lawsuits. While it is true that this case is not a taxpayer lawsuit, that distinction goes to whether or not there is irreparable harm. It does not, however, change the analysis on whether or not the court must consider if such harm exists.

Plaintiff argues that it need not show irreparable harm because it is making constitutional challenges to the face of the Ordinance, which are purely questions of law. Thus, Plaintiff argues that the Court should only consider Plaintiff's likelihood of prevailing on the merits. Plaintiff has cited a number of cases to support this proposition, however, Plaintiff's position is not supported by its cited legal authority.

Plaintiff relies heavily on the language in Hunter v. City of Whittier ( 1989) 209 Cal.App.3d 588, 595-596. There, the court stated that "[o]ccasionally, however, the likelihood of prevailing on the merits depends upon a question of pure law rather than upon evidence to be introduced at a subsequent full unconstitutional on its face and that no factual controversy remains to be tried . ... Even where the question of law is not entirely determinative, it may be appropriate for the appellate court to express its opinion in order to clarify or narrow the issues for trial. [Citation.]" Thus, the language in Hunter applies to appellate court proceedings.

Plaintiff also relies on dicta in two California Supreme Court cases. In Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, the court stated that "if the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial court has discretion to issue the injunction notwithstanding that party's inability to show that the balance of harms tips in his favor. (King v. Meese, supra, 43 Cal. 3d at pp. 1227-1228 [dictum].)" (Id at p. 447.) HOWEVER, IN COMMON CAUSE THE COURT FOUND THAT THERE WAS NO LIKELIHOOD OF SUCCESS ON THE MERITS AND CONCLUDED THAT THE PRELIMINARY INJUNCTION SHOULD NOT HAVE ISSUED. (IBID.) THUS, THE QUOTED LANGUAGE IN COMMON CAUSE IS DICTA.

SIMILARLY, IN KING, THE COURT STATED THAT "THE MORE LIKELY IT IS THAT PLAINTIFFS WILL ULTIMATELY PREVAIL, THE LESS SEVERE MUST BE THE HARM THAT THEY ALLEGE WILL OCCUR IF THE INJUNCTION DOES NOT ISSUE."

(King, supra, 43 Cal.3d at p. 1227.) King considered the balance of harms, but it does not appear that King considered if the harm to plaintiffs was irreparable. And ultimately, the court found that the plaintiffs were not likely to prevail on the merits and that the trial court properly denied the preliminary injunction.

SIMILARLY, IN W. HOLLYWOOD CONCERNED CITIZENS V. CITY OFW. HOLLYWOOD (1991) 232 CAL.APP.3D 486, THE COURT AFFIRMED DENIAL OF THE INJUNCTION AND STATED THAT SINCE THE PLAINTIFFS ··HAVE NOT ESTABLISHED A ‘REASONABLE PROBABILITY' THEY WILL PREVAIL ON THE MERITS AT TRIAL, WE HAVE NO REASON TO BALANCE THE HARDSHIPS BETWEEN THE LANDLORDS AND THE CITY." (ID. AT P.500.) AGAIN, IT WAS NOT CLEAR THAT THE COURT HAD CONSIDERED OF THE HARM TO PLAINTIFFS WAS IRREPARABLE HARM.

In Palos Verdes Shores Mobile Estates v. City of L.A. (1983) 142 Cal.App.3d 362,368, the court noted that the only issued presented on appeal was whether the rent ordinance in question was constitutional on its face and whether the administrative guidelines promulgated thereunder were valid. The court then decided that it was appropriate for it to make a determination on the facial validity of the ordinance. (Ibid.) Similarly, in Oceanside Mobilehome Park Owners' Ass'n v. City o/Oceanside (1984) 157 Cal.App.3d 887, the court reviewed the trial court's granting of a preliminary injunction and cited to Palos Verdes for the proposition that the appellate court could determine the facial validity of an ordinance that presented an issue oflaw. (Id. at p. 908 fu.3.) OCEANSIDE, LIKE, PALOS VERDES DID NOT DISCUSS IRREPARABLE HARMS AND IT IS NOT CLEAR THAT THE PARTIES DID NOT PRESENT EVIDENCE OF IRREPARABLE HARMS OR STIPULATE TO SUCH HARMS AT THE TRIAL COURT.

In Thomsen v. City of Escondido ( 1996) 49 Cal.App.4th 884, the trial court granted a preliminary injunction and the appellate court decided to review the constitutionality of an ordinance de novo without discussing the harm to plaintiff. (Id. at p. 890.) THOMSEN QUOTED BULLOCK V. CITY AND COUNTY OF SAN FRANCISCO ( 1990) 221 CAL. APP. 3D 1072, 1094 FOR THE RULE THAT ''WHEN THE MATTER IS SOLELY A QUESTION OF A VIOLATION OF LAW THE STANDARD OF REVIEW IS NOT ABUSE OF DISCRETION BUT WHETHER STATUTORY OR CONSTITUTIONAL LAW WAS CORRECTLY INTERPRETED AND APPLIED BY THE TRIAL COURT." (INTERNAL QUOTATIONS AND ITALICS OMITTED.)

However, in Bullock the court found that the trial court had made an error of law regarding the validity of a rent ordinance. (Id. at p. 1102.) The court then went on, "out of abundance of caution", to consider the "traditional 'interim harm' and 'likelihood of prevailing on the merits' factors" and specifically noted that the plaintiff had shown irreparable harm. (Id. at p. 1095, 1102.) THE COURT EXPLAINED THAT ITS "CAUTION DERIVES FROM COHEN V. BOARD OF SUPERVISORS [(1985)] 40 CAL.3D 277, WHERE THE SUPREME COURT HELD A MUNICIPAL ORDINANCE PREEMPTED BY STATE LAW, BUT NEVERTHELESS REMANDED THE CASE TO THE COURT OF APPEAL FOR CONSIDERATION OF THE TRADITIONAL FACTORS IN LIGHT OF THE SUPREME COURT'S DECISION ON THE PURELY LEGAL ISSUE OF PREEMPTION. (ID. AT PP. 289-290, 304.)" (BULLOCK, SUPRA, 221 CAL.APP.3D AT P. 1095, FU. 12.)

IN SOME OF PLAINTIFF'S CASES, IRREPARABLE HARM WAS FOUND TO EXIST. IN CITIZENS TO SAVE CALIFORNIA V. CALIFORNIA FAIR POLITICAL PRACTICES COM. (2006) 145 CAL.APP.4TH 736 THE TRIAL COURT FOUND THAT PLAINTIFFS WOULD SUFFER IRREPARABLE HARM. (ID. AT P. 744.) IN CAL. ASS'N OF DISPENSING OPTICIANS V. PEARLE VISION CTR. (1983) 143 CAL.APP.3D 419,434, THE COURT FOUND THERE WAS A PRESUMPTION OF IRREPARABLE INJURY. FINALLY, IN CITIZENS AGAINST RENT CONTROL V. CITY OF BERKELEY (1986) 181 CAL.APP.3D 213, IS NOT ON POINT AS IT RELATES TO THE AVAILABILITY OF COSTS AND ATTORNEYS' FEES.

Some of Plaintiff's cases appear to hold that an appellate court can decide an issue solely on the merits, but those cases do not that a trial court may do so. Thus, the Court finds that it should apply the normal test for a motion for preliminary injunction and consider whether or not Plaintiff has shown irreparable harm if the injunction is not issued.

Discussion of Irreparable Harm

Plaintiff cites to Code of Civil Procedure§ 526(a)(5) and (6) when arguing that a preliminary injunction should be granted. It also appears that Plaintiff may be arguing that an injunction should issue pursuant to Code of Civil Procedure§ 526(a)(2).

Subsection 2 applies to cases where there is great or irreparable injury. Plaintiff argues that it has shown an irreparable injury, which is presumably brought under subsection 2. In Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, the plaintiff argued there was a taking because the Water Resources Control Board was collecting fees, which plaintiff claimed were unconstitutional. AS TAHOE KEYS EXPLAINED, "IT IS CLEAR THAT A PLAINTIFF MUST MAKE SOME SHOWING WHICH WOULD SUPPORT THE EXERCISE OF THE RATHER EXTRAORDINARY POWER TO RESTRAIN THE DEFENDANT'S ACTIONS PRIOR TO A TRIAL ON THE MERITS. [CITATIONS.] IN GENERAL, IF THE PLAINTIFF MAY BE FULLY COMPENSATED BY THE PAYMENT OF DAMAGES IN THE EVENT HE PREVAILS, THEN PRELIMINARY INJUNCTIVE RELIEF SHOULD BE DENIED. [CITATION.]" (ID. AT P. 1471.) THE COURT THEN FOUND THAT THE PLAINTIFF HAD SHOWN LITTLE RISK OF IRREPARABLE HARM. (ID AT P. 1473.)

The Court finds Tahoe Keys is analogous to the situation here. Although Plaintiff brings other constitutional challenges besides taking, the harm that Plaintiff's members would suffer is monetary. The allegations in the verified complaint are that Plaintiff's members will be damaged by the loss of individual property rights. (Comp. ,r,r 27, 33, 43.) THESE ALLEGATIONS ARE NOT SPECIFIC, HOWEVER, IT APPEARS THAT THE MAIN CONCERN OF PLAINTIFF IS THE MONETARY LOSS.

AT THE HEARING, PLAINTIFF ARGUED THAT IT WOULD BE SUBJECT TO OTHER HARMS, INCLUDING THE INABILITY TO CONTROL WHO LIVES AT A LANDLORD'S PROPERTY AND DIFFICULTIES WITH REMOVING TENANTS INVOLVED IN CRIMINAL ACTIVITY FROM A RENTED PROPERTY. HOWEVER, EVIDENCE OF THESE HARMS WAS NOT INCLUDED IN THE PRELIMINARY INJUNCTION PAPERS AND ACTUAL HARM FROM THESE INCIDENTS APPEARS SPECULATIVE AT THIS STAGE.

SUBSECTION 5 APPLIES WHEN IT BE EXTREMELY DIFFICULT TO ASCERTAIN THE AMOUNT OF COMPENSATION WHICH WOULD AFFORD ADEQUATE RELIEF. PLAINTIFF ARGUED IN ITS BRIEFS AND DURING ORAL ARGUMENT THAT IT WOULD BE EXTREMELY DIFFICULT FOR THE LANDLORDS TO CALCULATE THEIR LOST RENTAL INCOME AND TO COLLECT THIS LOST INCOME FROM TENANTS. THE COURT DOES NOT FIND THIS ARGUMENT PERSUASIVE. IF THE ORDINANCE IS ULTIMATELY STRUCK DOWN THEN THE LANDLORDS WILL BE ABLE TO RAISE THEIR RENTS WITHOUT THE RESTRICTIONS INCLUDED IN THE ORDINANCE AND SHOULD BE ABLE TO RECOVER ANY LOST PROFITS.

PLAINTIFF ALSO ARGUED IN ITS BRIEF THAT THERE WOULD BE A MULTIPLICITY OF LAWSUITS, CITING TO SUBSECTION 6. PLAINTIFF ARGUED THAT ITS LANDLORDS WILL BE SUBJECT TO A MULTIPLICITY OF LAWSUITS IF THE ORDINANCE IS ENTIRELY STRUCK DOWN AND THE LANDLORDS MUST WORK TO GET THEIR UNPAID RENT. PLAINTIFF DOES NOT PRESENT ADMISSIBLE EVIDENCE TO SUPPORT THIS CLAIM. AND ITS ARGUMENT IS SPECULATIVE AT THIS POINT. IT IS NOT CLEAR THAT TENANTS WOULD REFUSE TO PAY RENT IF LEGALLY OWED TO LANDLORD AND RISK THE CONSEQUENCES OF NOT PAYING.

Conclusion

THEREFORE, THE COURT FINDS THAT PLAINTIFF HAS NOT MET ITS BURDEN OF SHOWING IT WILL SUFFER IRREPARABLE HARM WITHOUT THE INJUNCTION AND THE COURT HEREBY DENIES PLAINTIFFS MOTION.

The Court plans to set the hearing on the permanent injunction on an expedited basis. The parties are ordered to meet and confer on a briefing schedule and proposed hearing dates, which will be at least two weeks after the reply is filed. The Court prefers succinct briefs, but given the complexity of this case the Court increases the page limits on the moving and opposition memoranda to 20 pages. The parties shall appear to discuss these matters with the Court on March 3, 2017, at 9:00 a.m. in Department 9. The parties may avoid this hearing by appearing ex parte with a stipulation and proposed order that addresses these matters. (Web Link)

Boy the reputation of the CAA is going to be hurt really badly.


Posted by Name hidden
a resident of another community

on Feb 26, 2017 at 4:12 pm

Due to repeated violations of our Terms of Use, comments from this poster are automatically removed. Why?


Like this comment
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Feb 28, 2017 at 3:32 pm

The Business Man is a registered user.

Tonight I am going to ask the question:

The TRO was issued and entered on Dec. 28, 2016, this TRO has an expiration date of 22 days after being issued because of Cal Civ Proc Under CCP 527 (d) (1).

CCP 527 (d) (1) states:

(d) In case a temporary restraining order is granted without notice in the contingency specified in subdivision (c):

(1) The matter shall be made returnable on an order requiring cause to be shown why a preliminary injunction should not be granted, on the earliest day that the business of the court will admit of, but not later than 15 days or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued.( Web Link)

That means the TRO issued in this case has an expiration date of 22 days after issuance which was in Mid-January, 2017. There has been no reissuance of another TRO to continue the suspension of Measure V .

A reissuance is required due to Cal Civ Proc. CCP 527 (5), which states TRO’s are required to be reissued by the court to continue to be in effect. However the Santa Clara Court has not done this.

CCP 527 (5) states:

(5) Upon the filing of an affidavit by the applicant that the opposing party could not be served within the time required by paragraph (2), the court may reissue any temporary restraining order previously issued.  The reissued order shall be made returnable as provided by paragraph (1), with the time for hearing measured from the date of reissuance.  No fee shall be charged for reissuing the order.( .( Web Link)

Thus the TRO did in fact expire in Mid-January, 2017 and the rent control and rent rollback was in effect after that date. That means that for the Months of Feb. and March, the rent control and rent-rollback is now active.

The court was never asked by the CAA to re-issue the TRO after the initial one. I personally went to the Santa Clara court to verify this. If the CAA has in fact failed to request or get a renewed TRO after Mid-January, then the TRO is in fact dead.

But the key thing is the TRO died. Why is the City Attorney and Project Sentinel saying the TRO is still in effect when it is not? Please explain this to us?


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