Carrico et al v. City and County of San Francisco, No. 3:2009cv00605 - Document 40 (N.D. Cal. 2009)
Court Description: ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND ORDER TO SHOW CAUSE by Judge William Alsup [granting 17 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 8/7/2009)
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Carrico et al v. City and County of San Francisco Doc. 40 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 For the Northern District of California United States District Court 9 10 TIM CARRICO, SMALL PROPERTY OWNERS OF SAN FRANCISCO INSTITUTE, and MARY FIGONE, 11 Plaintiffs, 12 13 14 15 No. C 09-00605 WHA v. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND ORDER TO SHOW CAUSE CITY AND COUNTY OF SAN FRANCISCO, Defendant. / 16 INTRODUCTION 17 18 This action challenges San Francisco’s Proposition M on federal and state law grounds. 19 Proposition M prohibits tenant harassment by landlords, provides for attorney’s fees for 20 successful plaintiffs in unlawful detainer actions, and adds harassment as an affirmative defense 21 to unlawful detainer actions. This order finds that plaintiff landlords’ substantive due process 22 claim is not plausible. Accordingly, defendant’s motion to dismiss that claim is GRANTED. 23 Since the only remaining federal claim appears to be moot or insubstantial, the parties are 24 25 26 27 28 ORDERED TO SHOW CAUSE as to why that claim should not be dismissed. This order does not consider the merits of plaintiffs’ motion for preliminary injunction. STATEMENT The voters of the City and County of San Francisco (CCSF) passed and approved an initiative designated as Proposition M in the November 2008 elections. Plaintiffs Tim Carrico, Dockets.Justia.com 1 Small Property Owners of San Francisco (SPOSF), and Mary Figone bring this action to 2 challenge that initiative. SPOSF is a nonprofit association that represents owners of residential 3 properties in the City and County of San Francisco. For the Northern District of California United States District Court 4 Proposition M seeks to prevent landlords from harassing and pressuring tenants to vacate 5 rental units so that landlords can bring in new tenants at higher rents. Proposition M amended 6 Section 37.9(g) of the San Francisco Administrative Code (Rent Ordinance) and added a new 7 Section 37.10B to that ordinance. Those amendments prohibited various acts or omissions by 8 landlords that are designed to harass tenants. They also added other legal protections that were 9 designed to prevent harassment against tenants. These additions included a provision that 10 allowed for shifting of attorney’s fees for plaintiffs who successfully litigate unlawful detainer 11 proceedings and a provision that created an affirmative defense for violations of the rent 12 ordinance in such proceedings. 13 Multiple landlords’ associations filed suit in the San Francisco Superior Court in 14 December 2008 challenging Proposition M. That action is titled Larson v. City and County of 15 San Francisco, San Francisco Superior Court Case No. 08-509083. The petitioners in that action 16 included the San Francisco Apartment Association (SFAA) and the San Francisco Association 17 of Realtors (SFAR). On May 19, 2009, after briefing and oral argument, the San Francisco 18 Superior Court granted in part and denied in part the Larson petition. The state court concluded 19 that the definition of harassment, “with ulterior motive or without honest intent,” was vague and 20 therefore severed that provision. The state court also severed the attorney’s fees provision. 21 Proposition M was upheld on all other grounds. The Larson petitioners filed a notice of appeal 22 on July 28, 2009, only a few days ago. 23 Plaintiffs filed this action in February 2009. Plaintiffs are SPOSF, Mary Figone, and 24 Tim Carrico, a member of SFAR and the former president of SFAA. This action is nearly 25 identical to Larson. Plaintiffs raise the same claims that were dicided in Larson, with the 26 27 28 2 1 addition of one federal claim and two state-law claims.* Defendant now brings this motion to 2 dismiss those claims. 3 4 Plaintiffs’ post-election claim that the ballot materials violated substantive due process 5 under the United States Constitution fails to state a claim for relief. For the following reasons, 6 defendant’s motion to dismiss claim two is GRANTED. For the Northern District of California 7 United States District Court ANALYSIS Whether a ballot pamphlet “falls below the requirements of substantive due process is 8 an issue of law.” Burton v. Georgia, 953 F.2d 1266, 1269 n.2 (11th Cir. 1992) (cited with 9 approval by the Ninth Circuit in National Audubon Society, Inc. v. Davis, 307 F.3d 835 (9th Cir. 10 2002)). To attack election ballot materials for violation of federal substantive due process, the 11 Ninth Circuit has adopted the Eleventh Circuit’s high burden: 12 13 14 15 16 17 For such extraordinary relief to be justified, it must be demonstrated that the state’s choice of ballot language so upset the evenhandedness of the referendum that it worked a patent and fundamental unfairness on the voters. Such an exceptional case can arise . . . only when the ballot language is so misleading that voters cannot recognize the subject of the amendment at issue. As long as citizens are afforded reasonable opportunity to examine the full text of the proposed amendment, broad-gauged unfairness is avoided if the ballot language identifies for the voter the amendment to be voted upon. Therefore, substantive due process requires no more than that the voter not be deceived about what amendment is at issue. 18 National Audubon Society, 307 F.3d at 858 (citing Burton, 953 F.2d at 1269) (internal ellipse 19 omitted). Generally, the democratic process requires attacks on deficiencies in the ballot 20 materials to occur “before an election takes place and not after.” People ex rel. Kerr v. County 21 of Orange, 106 Cal. App. 4th 914, 934 (2003). 22 Plaintiffs argue that their due process rights were violated because the neutral digest 23 for Proposition M did not call the voters’ attention to the affirmative defense portion of 24 Section 37.10B(c)(3) or the attorney’s fees provision in Section 37.10B(c)(6). This argument 25 26 27 28 * Specifically, plaintiffs assert: (1) violation of First and Fourteenth Amendments; (2) violation of federal substantive due process; (3) declaratory relief; (4) state law preemption; (5) violation of San Francisco Municipal Elections Code Section 500; (6) violation of state substantive due process; and (7) state declaratory relief. 3 1 is frivolous. First, the partisan ballot materials and summary in the voter information pamphlet 2 informed voters that Proposition M contained an attorney’s fees provision. Second, both the 3 affirmative defense portion and the attorney’s fees provision were included in the full text of the 4 measure provided to the voters in the voter information pamphlet. For the Northern District of California United States District Court 5 Plaintiffs also allege that the legal text of Proposition M in the voter information 6 pamphlet was materially misleading. The voter information pamphlet contained the text of 7 Proposition M in both underlined and “strikeout text.” Additions to Chapter 37 were indicated 8 in underlined italics, and deletions were written in strikethrough italics. Plaintiffs argue that the 9 existence of any “strikeout” text was misleading to voters because it represented that Proposition 10 M was an alteration of an existing tenant harassment ordinance rather than completely new 11 legislation. This argument fails. The first page of the legal text of Proposition M appeared as 12 follows: 13 14 15 16 Ordinance amending Administrative Code Chapter 37 Residential Rent Stabilization and Arbitration Ordinance by: amending Section 37.2 to define harassment by or on behalf of an owner; and by adding Section 37.10B “Tenant Harassment” to prohibit defined harassment by landlords and to provide for enforcement by reduction in rent on grounds of substantial and significant decrease in services and to provide for enforcement by criminal and civil penalties including punitive damages. 17 18 Note: Additions are single-underline italics Times New Roman. Deletions are strikethrough italics Times New Roman. 19 (CCSF Exh. 1 at 254). The beginning of Section 37.10B again stated that “The San Francisco 20 Administrative Code is hereby amended by adding Section 37.10B” (id. at 256) (emphasis 21 added). Similarly, the ballot materials informed the voters several times that the rent ordinance 22 did not already ban tenant harassment and that “Proposition M will add a provision to our rent 23 control law prohibiting tenant harassment and letting tenants get rent reductions if being 24 harassed” (id. at 170–73). Furthermore, whether an existing ordinance already concerned the 25 subject of tenant harassment is merely ancillary and does not strike at the purpose of Proposition 26 M. Thus, plaintiffs’ claim is far from the “patent and fundamental unfairness” that is required to 27 state a post-election due process claim. 28 4 1 Plaintiffs do not cite a single decision in the Ninth Circuit where a post-election 2 substantive due process challenge to ballot materials prevailed. Plaintiffs cite decisions such 3 as Bennett v. Yoshina, 140 F.3d 1218 (9th Cir. 1998), and Horwath; but at most these decisions 4 stand for the proposition that an election violates due process under the United States 5 Constitution when it is conducted in a manner that is fundamentally unfair. 6 Claim two fails as a matter of law because the complaint does not state plausible facts 7 that rise to the level of “a patent and fundamental unfairness.” Because the voters were not 8 deceived about the amendment at issue, defendant’s motion to dismiss the federal substantive 9 due process claim is GRANTED. For the Northern District of California United States District Court 10 * * * 11 The only federal claim remaining is plaintiffs’ First Amendment claim that 12 Sections 37.10B(a)(6) and (7) of Proposition M chills landlords from exercising their right 13 to engage in free speech with tenants. This claim likely fails as a matter of law. 14 The sections at issue hold that a landlord or landlord’s agent may not “in bad faith or 15 with ulterior motive or without honest intent . . . (6) attempt to coerce the tenant to vacate 16 with offer(s) of payments to vacate which are accompanied with threats or intimidation; [or] 17 (7) continue to offer payments to vacate after tenant has notified the landlord in writing that they 18 no longer wish to receive further offers of payments to vacate” (CCSF Exh. 1 at 256). The state 19 court in Larson considered the First Amendment claim and struck the phrase “with ulterior 20 motive or without honest intent” from the statute. The only remaining language in that 21 provision is “bad faith.” It is unlikely that the Proposition M as it now stands violates the 22 First Amendment. Therefore, plaintiffs’ single remaining federal claim appears to be moot 23 or insubstantial. 24 If so, then only state law claims would remain in this action. The subject-matter 25 jurisdiction for those claims is based on supplemental jurisdiction, which is discretionary. Given 26 that those involve important principles of state constitutional law, the state courts would be 27 better suited to decide them. Therefore, this Court is inclined against exercising supplemental 28 5 1 jurisdiction over the state law claims and the parties are ordered to show cause otherwise if they 2 wish a different outcome. 3 4 Plaintiffs’ federal substantive due process challenge does not state a claim. Accordingly, 5 defendant’s motion to dismiss claim two is GRANTED. Since leave to amend would be futile, 6 this claims is DISMISSED WITH PREJUDICE. 7 Having dismissed claim two, only one federal claim remains. Moreover, the single 8 remaining federal claim appears to be moot or insubstantial. Accordingly, by FRIDAY, 9 AUGUST 21 AT NOON, the parties are ORDERED TO SHOW CAUSE as to why the remaining federal 10 claim should not be dismissed. 11 For the Northern District of California United States District Court CONCLUSION 12 IT IS SO ORDERED. 13 14 Dated: August 7, 2009. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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