Blaming one’s secretary for an error or omission is a time-honored attorney tradition, even if there is no documented instance of this excuse actually working in court. But an Orange County judge presiding over an unlawful detainer trial took the excuse one step further by trying to blame his failure to prepare a Statement of Decision on the absence of a secretary. Same result - the Court of Appeal reversed, noting that the secretarial absence might have been less than a complete explanation given that the Statement of Decision could have been made orally.

The appellate court also was unamused by the trial court’s ruling that because of scheduling conflicts the tenant’s counsel had to present his entire case in 20 minutes. The Court of Appeal held that this error was not cured by accepting an offer of proof that the tenant would testify to the truthfulness of her affirmative defenses.

Turning to the merits, the court held that the lack of a certificate of occupancy as required by a Santa Ana ordinance rendered the lease an illegal contract. A landlord without a certificate had no right to collect past due rent, the Court of Appeal concluded.

The Court of Appeal also held that reversal was warranted by the trial court’s failure to follow Code of Civil Procedure § 1174.2, which requires that once a breach of the warranty of habitability is found, among other things the landlord is not entitled to possession and the tenant is entitled to an award of costs and attorneys’ fees. The trial court’s ruling reducing the rent owed by $1,000 constituted an implied finding of a breach, which should have triggered compliance with § 1174.2, the Court of Appeal held. [Download]

The Legislature cannot bypass a federal requirement that Medicaid reimbursement rate decisions may only be made after public notice and comment and specific findings, the Court of Appeal has held. The court thus invalidated a legislative rate freeze. In doing so, the appellate court held that the Medicaid Act’s procedural requirements applied to the Legislature as well as to the Department of Health Care Services.

The Court of Appeal also reaffirmed two procedural doctrines near and dear to the heart of legal service attorneys: (1) broad citizen standing to challenge illegal government activities; and (2) a right of action under Code of Civil Procedure § 1085 to challenge illegal government action, even in those instances where an individual suing in federal court under 42 U.S.C. § 1983 would not be allowed to proceed. [Download]

A local ordinance’s requirement that developers include affordable housing within multi-family housing projects cannot be subject to a facial attack that it takes property without compensation, the Court of Appeal has held.

When landowners are required to dedicate portions of their land as a condition of obtaining a development permit, the government must show that there is a nexus between the dedication requirement and the impact of the development, and rough proportionality between the exaction requirement and the extent of that impact. Following recent state and federal Supreme Court decisions, the Court of Appeal held that this difficult test does not apply to generally applicable zoning legislation. [Download]

The sins of landlords may be visited on their successors, the Court of Appeal has held. The court upheld a rent board decision halving a tenant’s rent and requiring a new landlord to pay the tenant $41,000 in excess rent imposed by the previous landlord in violation of a local rent control ordinance. [Download]

We’re not out of the woods, but it may yet be safe to go back to federal court on Medicaid claims. Just don’t expect to be paid for your trouble.

That’s one lesson from this Ninth Circuit opinion which permits litigation on the merits of a claim that legislation reducing Medi-Cal provider reimbursement rates by 10% violates provisions of the Medicaid Act. Another possible moral: what’s good for the business community’s goose is good for poor people’s gander.

For decades, the United States Supreme Court has been eroding the ability of individuals to sue for violation of federal statutes. The Court almost never finds an implied right of action in the statute itself, and is increasingly reluctant to hold that 42 U.S.C. § 1983 confers a right of action. A § 1983 claim will be recognized only when the statute unmistakably confers individual rights. Under this test, courts have held that some provisions of the Medicaid Act are enforceable by individuals under § 1983, while others are not, including the provisions at issue in this case. 42 U.S.C. § 1396a(a)(30)(A) (reimbursement payments must be high enough to enlist a sufficient number of providers).

At the same time as individual rights have eroded, the courts have entertained on their merits suits brought by businesses contending that state legislation violates federal law and should be enjoined under the Supremacy Clause of the Constitution. The Ninth Circuit in this case, following the lead of several other courts, held that a claim that state law is preempted by federal law may proceed under the Supremacy Clause even if the federal law cannot be enforced under § 1983.

There are three catches. First, in Supremacy Clause cases attorneys’ fees awards are probably not available, as the most widely used fee provision – 42 U.S.C. § 1988 – awards fees only for suits under § 1983 and similar laws. Second, while it is clear that the Supremacy Clause permits suits alleging that state statutes violate federal law, it is less clear, and beyond the scope of this summary, whether preemption claims against non-statutory state laws, policies, and practices will be heard in federal court. And finally, Justices Scalia and Thomas, but so far only those two, would hold that Supremacy Clause suits should not be permitted when the claim is that state law violates a federal statute enacted under Congress’ spending power. The sole “remedy” in such case, Justice Scalia has stated, is termination of federal funding. [Download]

Roommates.com, a roommate-matching service, does not enjoy Congressional immunity from fair housing laws when it prompts subscribers to discriminate, the Ninth Circuit has held. The decision reconciles the Fair Housing Act, 42 U.S.C. § 3601 et seq., with the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 230, which provides that a provider of an interactive computer service shall not be treated as a publisher of information on that service unless it is also responsible for “creation and development” of the information. The Ninth Circuit held that by requiring would-be subscribers to answer questions about their sex, family status, sexual orientation, etc., Roommates.com was little different from a real estate broker saying, “tell me whether you’re Jewish or you can find another broker.” Because the district court had dismissed the case solely on CDA immunity, the Ninth Circuit did not have to decide whether Roommates.com in fact was violating the Fair Housing Act or whether defenses such as the First Amendment applied.

The Court of Appeals did hold that the CDA immunized Roommates.com’s request for “Additional Comments” by subscribers because the request is completely open-ended and thus does not encourage discriminatory answers. The opinion lists examples of such comments, including one of our all-time favorite footnotes, which we repeat in its entirety: “The female we are looking for hopefully wont [sic] mind having a little sexual incounter [sic] with my boyfriend and I [very sic].” Those of you who have followed recent news reports can guess the author of the Ninth Circuit opinion. [Download]

A suit challenging systemic failures in the treatment of people with developmental disabilities may proceed as a class action, the Court of Appeal has held.

The suit alleges that State policies result in unnecessary placement of people in large institutions rather than in community placements in violation of the Lanterman Act, Welf. & Inst. Code §§ 4500 et seq. The trial court denied class certification, reasoning that each putative class member’s situation is different, requiring different outcomes. The Court of Appeal reversed, concluding that this approach fails “to grasp the ‘big picture’ … Before the outcome of improved individualized assessment … can be realized, the policies that undergird decisionmaking and allocation of resources must be changed … the class action mechanism is the only alternative that can achieve this end.” [Download]

We are all going to get old and many of us will become infirm before we die, but these cheery realities do not transform us into a protected class, the Ninth Circuit has held. The Court of Appeals held that a town’s denial of a permit to build a seniors housing project did not discriminate on the basis of disability in violation of the Fair Housing Act, 42 U.S.C. § 3604(f)(1)(B). “[B]eing old is not, per se, equivalent to being disabled.”

The disability discrimination claims, the Ninth Circuit reasoned, were also inconsistent with the developer’s permit application, which emphasized that the project would primarily serve the “active and independent discerning senior populace.” [Download]

A landlord denied a discretionary rent increase under a regulatory agreement with a state agency may sue for breach of contract rather than seeking a writ of mandate, the Court of Appeal has held.

Health and Safety Code § 50670 permits the Department of Housing and Community Development to reach agreements with sponsors for loans to rehabilitate affordable housing with rents controlled. The sponsors can apply for rent increases to defray necessary costs and to preserve the fiscal integrity of the project. In this case, HCD denied a rent increase, and the sponsor sued, alleging that it met the criteria for an increase. The trial court dismissed the suit on the ground that it should have been filed as a writ of mandate, but the Court of Appeal reversed. The appellate court held that an administrative writ under Code of Civil Procedure § 1094.5 would have been inappropriate because no administrative hearing was required by law. And a breach of contract suit was preferable to an ordinary writ under § 1085. The court also approved an action for declaratory relief. [Download]

Once a landlord decides to file an unlawful detainer action, every aspect of the ensuing process, from the threat to sue to the service of notice to quit to the suit itself, is protected by the litigation privilege, Civ. Code § 47, the Court of Appeal has held. The court thus held that most of a tenant’s cross-complaint against a landlord’s eviction action should be struck under the anti-SLAPP statute, Code Civ. Proc. § 425.16. [Download]