Within one week the Appellate Division of the San Francisco Superior Court issued two decisions addressing requirements for an Ellis Act eviction under S.F. Admin. Code, Section 37.9A(f), taking an evidently different approach in reading the section in two cases and achieving opposite results.
First came out Naylor v. Sup. Ct., 236 Cal.App.4th Supp. 1, 2 (Cal. Super. Ct. 2015), an appeal from the case Hirsch v. Naylor, CUD-14-650718. The attack was made mainly on the sub-section 37.9A(f)(5), which lists the required disclosures to be made in the notice.
Tenants primarily alleged that the landlord's eviction notice failed, because the notice did not inform tenants about their re-rental rights as it relates to any future property owner, beyond the current owner and plaintiff Mr. Hirsch. Tenants also argued as landlord's failure that the extension to vacate the premises, granted to tenants, was not made known to the Rent Board.
The appellate panel upheld trial court's denial of tenants' motion to quash. The court held that the notice was sufficient, and if there were any deficiency in the notice itself, a copy of the applicable ordinance section was provided with the notice to suffice proper disclosures. (Id. at 7-8) The court underlined that it relies on the "plain language" of the Rent Ordinance, and that, if the drafters would so intend to require, they would include those requirements in the expressed list of mandatory disclosures. (Id.) The court declined to "read-in" any additional hypothetical conditions for the notice and observed that "[w]hile the notice provisions must be strictly complied with, the courts are not required to stretch their language to include a notice provision not expressly stated." (Id.)
This last quote felt missed in the decision issued just six days later.
The second case fell on the other side, in Kaushik Mulji Dattani v. Kerman, an unpublished decision by the appellate division of the San Francisco Superior Court, decided by almost the same panel, except that instead Judge Wong in the Naylor case it was Judge Sullivan here. The underlying case here was CUD-14-649825. In this case, the attack was not on the eviction notice, but on the notice of intent filed with the Rent Board, as required by the Section 37.9A(f)(1). Tenants alleged that the memorandum was not recorded before the commencement of the eviction, and that the certification made to the Rent Board on "information and belief" was an insufficient affidavit. The court's order and the consequent appeal focused on the affidavit requirement. Much to my surprise, the court affirmed the finding. It held that "[t]he Notice of Intent did not comply with Rent Ordinance § 37.9A(f)(1) because it was based only on [declarant's] information and belief. A certification based on information and belief is insufficient." Kaushik Mulji Dattani v. Kerman, 2015 Cal. App. Unpub. LEXIS 3350, *2-3 (Cal. App. Dep't Super. Ct. May 4, 2015), citing Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 204.
This outcome was surprising for me, because in this case, unlike in the case decided a week before by almost the same panel of judges, the court did not adhere to the strict reading of the ordinance (and we are talking about the same sub-section (f) of the same section 37.9A of the same ordinance). The court instead relied on the Star Motor Imports case, which dealt with an issue of hearsay in judicial proceedings, and there, being unable to verify the proposed stated facts by a testimony, rendered the verification on information and belief inadequate. There is no such requirement in the Section 37.9A(f)(1)--it only calls for a certification under penalty of perjury, not for one made exclusively on personal knowledge--and there is apparently no issue with inability to verify the facts through the testimony in the subject judicial proceedings.
Up until learning about the decision in Kaushik, I always thought that the requirement for a verification to be made solely of true knowledge of the declarant was applicable in the context of the motion for summary judgment. Indeed, that the case the tenants cited in their motion to quash. (MTQ's memorandum at 10). Motion cites Lopez v. University Partners (1997) 54 Cal.App.4th 1117, relying on the statute specific for the motions for summary judgment, CCP § 437c(d)). But the subject declaration for the notice was not made in support of a motion for summary judgment, or any motion at all.
A more general definition of verification then should apply, see for instance, CCP § 446. In the Commissioner's Note 1 to this section, it says "if he aver matter "upon information and belief," or "upon information or belief," the verification will be sufficient if his affidavit states that as to the matters thus averred he believes the pleading to be true." The California Supreme Court in North v. Cecil B. De Mille Productions (1934) 2 Cal. 2d 55, 58-59, informs us that "Section 446 of the Code of Civil Procedure was adopted for the express purpose of permitting an allegation to be verified upon information and belief rather than upon knowledge where the fact was not within the personal knowledge of the person sworn" (my emphasis in both quotes). This is the point of view from the law side of the issue.
There is also a practical side. Sub-section 37.9A(f)(1) requires to include in the certification such facts as "the name or names of the tenants or lessees of the units, and the rent applicable to each residential rental unit." While other required information is easy to establish and so declare based on personal knowledge, these facts are not always available to the declarant, especially if the landlord acquired the property after the rental units were already leased, which happens much more often, than a purchase of a vacant building in this city. Tenants don't always disclose this information to the buyers, and even when they do, there is no guarantee of accuracy of the disclosures.
Imagine if a landlord received information from the tenants that there are two of them occupying the unit, their names are A and B, and they pay rent in the amount of $X per month. Now, if this landlord commences an Ellis Act eviction, under the holding of Kaushik he would have to affirmatively state under penalty of perjury that these are true facts to his personal knowledge. What if the information was inaccurate, let alone wrong? What if the actual tenants C or D had long time vacated and A and B were in fact occupants not approved by a previous landlord? What if the rent amount was different? What if the information from the previous owners is not available due to their death, or decision not to communicate, or it was an entity-owner no longer existing? In these scenarios, the newly invented rule under Kaushik would prevent a landlord from filing a required certification.
I'll remind you that Kaushik is not published and thus is not the law, but it signals a potential loophole worth of knowing before issuing a notice of intent. If you are stuck in a similar situation, read the Kaushik decision and see that the court explained its finding as "[t]he Court is not convinced that [the landlord] could not on proper inquiry learn the facts necessary to make the required certification." (Kaushik, Judgment on appeal, May 5, 2015, at 3). If the requirement to state facts on personal knowledge will become a mandatory rule added to the sub-section 37.9A(f)(1), landlords should prepare to argue exercised diligence in establishing the facts and making a "proper inquiry learn the facts necessary." There is always hope.
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