Thursday, September 28, 2017

Bending Laws of Physics - A New Opportunity For Lawyers in Richmond

Lawyers are so generally expected to be masters at bending laws, there are folklore quotes about it in pretty much every language. In Russian, the saying goes as "The Law is like an axle--it goes where you turn it." In other words, fatta la legge trovato l'inganno. But the newly enacted Rent Ordinance in the City of Richmond, California, raised the expectations of legal process to a new, previously unattended height--to bend the laws of physics. This must be the highest bar a practitioner will ever meet.

This is not say that time-bending is impossible. Other non-laywering professions post victorious news about conquering what was previously unthinkable, almost daily. Just yesterday, a gravitational wave from 2 billion years was detected, and the BBC today reported on a first-ever chemical surgery on an embryo, correcting its DNA. And now, thanks to the legislators in Richmond, we can boast of something too.

Consider the recently enacted Richmond Rent Ordinance (link). It requires that all eviction notices and all rent-increase notices be filed with the Richmond Rent Board. Fair enough. It also requires that those notice be filed together with the proofs of service of those notices. Still, nothing unusual. The San Francisco Rent Ordinance requires a similar step, to be done for almost all notices within 10 days after the service. So does Berkeley and Oakland Ordinance, i.e. this is an expected and common requirement. The unexpected is how this step is asked to be done in Richmond:

All Landlords are required to file a copy of all rental increase notices, change of terms of tenancy and tenancy termination notices with the Rent Board before serving the Tenant the notice. Proof of service with time and date of service must be included with the notice filed with the City (RMC 11.100.060(s)). 


Here is your chance, landlords and landlord-assisting practitioners. You must file a proof of service, indicating the date and time of that service, before you did the service. Since a proof of service is a declaration made under penalty of perjury (CCP § 2015.5), you must declare what's true, which in this case is the statement of fact you will do in the future. Congratulations, you time-bender.

My inquiry as to how this can be done in practice, led to suggestions to put an estimated time and date, as to declare only about the intent of performing the service. I'll try. But I do remember that declarations must “conform strictly” to section 2015.5. Kulshrestha v. First Union Commercial Corp. (Cal. 2004) 33 Cal.4th 601, 612; Baron v. Mare (1975) 47 Cal.App.3d 304.  Before the legal novelty introduced in Richmond service requirements, the test of declaration's sufficiency was simple: the true test of the sufficiency of an affidavit (or declaration under penalty of perjury [Code Civ. Proc. § 2015.5]) is whether it is so clear and certain that an indictment for perjury could be sustained on it if it were found to be false. Mack v. Super. Ct. (1968) 259 Cal.App.2d 7, 10.

How the declaration about an intent to serve a notice can be tested, this is by definition a declared statement of future intent, a speculation at best. More importantly, what policy purpose is achieved by requiring a landlord to declare his or her intent to serve a notice? I don't see any benefit, but I may be blind.

It does appear though that I was not the first one to point this curiosity out in the Richmond Ordinance. So, on July 19, the Board issued an Regulation 17-04, explaining that they are Ok if you file a notice declaration two days after the fact.  Phew!  Not that the life is perfect now, since you are required to make two filings instead of one, first file the notice, then come back and file the proof of service (what's wrong with every other neighboring Board's procedure of filing both notice and proof together after the notice is served?), but at least I no longer need a time machine.  And of course, this ease of filing requirements come only to those book worms who read every regulation published, because the actual ordinance and the "landlords" web page still contain the original file-before-served requirements. Why this correction had to be done as a separate regulation vs. a direct amendment of the actual ordinance, is yet another question going to the same black hole where all other questions raised in this article went.  But, you know, at least since yesterday you can measure the gravitational waives coming from those black holes. So cheer up!


More real property posts

If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. My office provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.

No comments:

Post a Comment