State law preempts a county’s attempt to regulate conversion of mobilehome parks from rental to resident ownership, the Court of Appeal has held in a comprehensive opinion.

Sonoma County’s ordinance set out criteria for approval of park conversions, including compliance with certain provisions of Government Code § 66427.5, consistency with the General Plan and other land use laws, and adequate assurances that the “conversion is a bona-fide resident conversion ….”

The Court of Appeal held that § 66427.5 expressly and impliedly preempted the ordinance. The express preemption conclusion was based on § 66427.5(e), which provides for a hearing on conversion applications, then states that the “scope of the hearing shall be limited to the issue of compliance with this section.”

In holding that the mobilehome law impliedly preempted the field, the court described at length what it considered to be a comprehensive statutory and regulatory scheme. Once the court reached that conclusion, the ordinance was doomed. Some of its provisions were preempted because they duplicated state law, while others fell short because they added requirements that were not in the state statutes. [Download]

That old cliche – “if something seems too good to be true it probably is” – is for losers. If something seems too good to be true, nail it down, then if the other side balks you sue and if at first you don’t succeed you keep litigating, if necessary for years and years.

Or at least that’s what a tenant did here. When a new landlord sent a lease seemingly reducing the rent on his Newport Beach apartment from $2,165 to $1,410, the tenant immediately agreed, then refused to budge when the landlord said the reduction was a misprint. The tenant kept paying the reduced rent, then moved out and refused to pay the landlord the alleged back rent. The landlord reported the tenant to Unlawful Detainer Registry, a perennial regular on these pages and no slouch itself on persistent litigation. When UDR’s report of the dispute to credit reporting companies interfered with the tenant’s credit, the tenant unsuccessfully sought to get UDR to include his side and when UDR allegedly failed to that, the tenant sued UDR. That was nine years and several appeals ago.

In the latest round, the Court of Appeal held that the tenant, if permitted to amend his complaint, might state claims under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and Consumer Credit Reporting Agencies Act, Civ. Code § 1785.1 et seq., and that the latter statute is not preempted by the FCRA (a point of dispute among different courts). [Download]

A five-year-old tenant may sue for public nuisance arising out of secondhand smoke in the public areas of an apartment complex, the Court of Appeal has held. At the same time, the court ruled in a 2-1 decision that the Americans with Disability Act did not apply to residences. [Download]

A tenant may sue a landlord for violating a rent control ordinance without threatening the landlord’s free speech rights, the Court of Appeal has held. The court ruled that the anti-SLAPP suit statute, Code of Civil Procedure § 425.16, does not apply to a suit alleging that a landlord evicted a tenant on the fraudulent premise that a family member would move into the apartment. “Terminating a tenancy or removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech.” [Download]

The Court of Appeal has held that Los Angeles violated state law when it required a developer either to include a specified percentage of affordable units within his proposed housing project or pay an in-lieu fee.

The court held that the inclusionary requirement violated the Costa-Hawkins Act, Civ. Code § 1954.53(a), which specifies that residential landlords may “establish the initial rental rate for a dwelling or unit.” Because the appellate court concluded that this language was unambiguous, the court did not address legislative history arguments made by amici tenants rights and non-profit developer groups. The amici pointed out that the Costa-Hawkins Act was exclusively aimed at overly strict local rent control ordinances. Even though there more inclusionary zoning ordinances than there were rent control ordinances in effect at the time of enactment, nothing in the legislative history discussed inclusionary ordinances at all. [Download]

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]