Filed 6/16/15; pub. order 7/9/15 (see end of opn.)




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                               DIVISION FOUR


T & A DROLAPAS & SONS, LP,
         Plaintiff and Appellant,
                                                         A139432
v.
SAN FRANCISCO RESIDENTIAL RENT                           (City & County of San Francisco
STABILIZATION AND ARBITRATION                            Super. Ct. No. CPF-12-511944)
BOARD et al.,
         Defendants and Respondents;
GERALD BORJAS,
         Real Party in Interest and
         Respondent.


         In this case we must decide whether Civil Code section 1954.53,1 subdivision
(d)(2) authorizes a San Francisco landlord to raise the rent without limit on an apartment
otherwise subject to rent control when an occupant, who moved into the apartment as a
child when his parents took possession, remained in possession of the unit after his
parents vacated it. The San Francisco Residential Rent Stabilization and Arbitration
Board (Rent Board) ruled in favor of the adult child in these circumstances and the
superior court upheld its decision. On review here, we have the benefit of the recent
opinion in Mosser Companies v. San Francisco Rent Stabilization and Arbitration Board
(2015) 233 Cal.App.4th 505 (Mosser Companies) where a panel in Division Three of this

         1
             Statutory references are to the Civil Code unless otherwise indicated.


                                                     1
district addressed the identical issue. Seeing no basis for distinguishing our case from
Mosser Companies and no reason to disagree with the conclusions or the analysis in that
case, we follow Mosser Companies and affirm the judgment.
                             STATEMENT OF THE FACTS
       On September 3, 1995, Javier and Barbara Lara began renting the apartment at
3380 21st Street, Unit 4, of a nine-unit building in San Francisco. The Laras took
occupancy of the unit pursuant to a written rental agreement with the building’s then
owner, but no copy of that agreement now exists. Gerald Borjas (Borjas), the real party
in interest and eldest of three Lara children, was six years old at the time he and his
family moved into the apartment. There is no evidence that the occupancy by the entire
family was in any manner inconsistent with the rental agreement or was without the
landlord’s permission. The initial rent on the apartment was $775.
       Appellant, T & A Drolapas & Sons, LP (Drolapas), purchased the building
containing the unit rented to the Laras in approximately April 2000. During escrow the
Laras signed and provided to Drolapas an “Estoppel Certificate: Landlord Questionnaire”
in which they stated that Javier and Barbara Lara were the “tenants” but that the unit was
“occupied” by two adults and four children, and this was the “number of allowable
tenants.” Drolapas points out that the Estoppel Certificate was not signed by Borjas as
the tenant, naturally enough, as he was approximately 11 years old at the time.
       Javier and Barbara Lara bought a home in Daly City in December 2010 and began
using that property as their principal residence. Borjas did not move with his parents to
Daly City and has continuously lived in the unit on 21st Street in San Francisco. Because
Borjas’s income is sometimes unstable, Javier and Barbara Lara have continued to pay
rent for the apartment on 21st Street. Borjas pays them rent for the apartment when he is
able to do so.
       On May 10, 2011, Drolapas served Javier and Barbara Lara with a 60-day notice
of a rent increase from $1,171.32 to $2,000.00 per month, effective July 15, 2011. The
notice stated that the unit did not fall within the jurisdiction of the San Francisco



                                              2
Residential Rent Stabilization and Arbitration Ordinance because Javier and Barbara Lara
no longer occupied it.
                             PROCEDURAL BACKGROUND
       Drolapas filed a landlord’s petition with the Rent Board on May 10, 2011, seeking
a determination that the unit was not subject to rent control pursuant to Rent Board Rules
and Regulations and the Costa-Hawkins Rental Housing Act (the Costa-Hawkins Act or
the Act) (§ 1954.50 et seq.). Borjas subsequently filed a tenant’s petition alleging the
rent increase was illegal and taking the position he was an “original occupant” of the
premises.
       Disputing that Borjas was an “original occupant,” Drolapas claimed it was allowed
to raise the rent on the unit by any amount it desired under section 1954.53, subdivision
(d)(2), which provides as follows: “If the original occupant or occupants who took
possession of the dwelling or unit pursuant to the rental agreement with the owner no
longer permanently reside there, an owner may increase the rent by any amount allowed
by this section to a lawful sublessee or assignee who did not reside at the dwelling or unit
prior to January 1, 1996.”
       A Rent Board Administrative Law Judge (ALJ) heard the matter on September 15,
2011, and issued a decision on December 14, 2011. The ALJ agreed with Borjas, ruling
that he “was an original occupant who took possession of the unit pursuant to the rental
agreement in 1995, and that he continues to permanently reside in the unit.” The ALJ
also concluded that “even assuming Mr. Borjas was not an original occupant, the
undisputed evidence showed that he was a subtenant who resided in the unit prior to
January 1, 1996. Thus, whether Mr. Borjas is an original occupant or a subtenant who
resided in the unit prior to January 1, 1996, Civil Code Section 1954.53(d)(2) does not
authorize an unlimited rent increase.” The ALJ declared the notice of rent increase to
$2,000.00 per month was null and void. Drolapas appealed the decision to the entire
Rent Board, which denied the appeal on January 31, 2012.
       On February 15, 2012, Drolapas filed in superior court a petition for writ of
administrative mandamus and complaint for declaratory relief, under Code of Civil


                                             3
Procedure sections 1085 and 1094.5. The petition sought a writ compelling the Rent
Board to set aside its decision and further sought a trial de novo in superior court, or in
the alternative an order compelling the Rent Board to conduct a new hearing with a
declaration from the court that Borjas was not an original occupant or a subtenant who
resided in the unit prior to January 1, 1996.
       The matter was heard by Judge Ronald E. Quidachay on December 3, 2012, who
denied the petition and the claim for declaratory relief in a written statement of decision
filed April 15, 2013, and reduced to judgment June 4, 2013. The court concluded that the
Rent Board did not abuse its discretion in determining that Borjas was an original
occupant under section 1954.53, subdivision (d)(2), or else was a subtenant who resided
in the unit prior to January 1, 1996. Either way, the court held, Borjas was entitled to the
protection of the rent control ordinance. Drolapas then filed a timely notice of appeal.
                                       DISCUSSION
       On appeal, Drolapas contends Borjas did not qualify as an “original occupant”
and, as a child, he did not “take possession” of the unit “pursuant to the rental agreement”
in 1995. It further contends Borjas was not a “subtenant who resided in the unit prior to
January 1, 1996.”
       Ordinarily we review the decision whether to grant a writ of administrative
mandamus to determine whether there was “a prejudicial abuse of discretion in the
administrative agency’s decision.” (Cobb v. San Francisco Residential Rent Stabilization
& Arbitration Bd. (2002) 98 Cal.App.4th 345, 350; Code Civ. Proc. § 1094.5, subd. (b).)
The arguments raised by appellant, however, present issues of statutory interpretation,
pure questions of law on essentially undisputed facts, which are subject to de novo
review. (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627;
Danekas v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2001) 95
Cal.App.4th 638, 643.)
       The Costa-Hawkins Act was enacted in 1995 to ameliorate the impact of local rent
control efforts, and specifically vacancy control, through which rent controls in a few
locales remained in place even when an apartment was voluntarily vacated and a new


                                                4
tenancy began. The legislation was billed by proponents as a “moderate approach to
overturn extreme vacancy control ordinances which unduly and unfairly interfere into the
free market.” (Bill Analysis of AB 1164 for the Assembly Floor (July 24, 1995)
<http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_1151-1200/ab_1164_cfa_950724_
180346_asm_floor.html> [as of June 15, 2015].) The Act preempts local rent control
ordinances in some circumstances. “Its overall effect is to preempt local rent control
ordinances in two respects. First it permits owners of certain types of property to adjust
the rent on such property at will, ‘[n]otwithstanding any other provision of law.’ (Civ.
Code, § 1954.52, subd. (a).) Second it adopts a statewide system of what is known
among landlord-tenant specialists as ‘vacancy decontrol,’ declaring that ‘notwithstanding
any other provision of law,’ all residential landlords may, except in specified situations,
‘establish the initial rental rate for a dwelling or unit.’ (Civ. Code, § 1954.53, subd. (a).)”
(DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 40-41; accord, Action Apartment Assn.,
Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1237.) “San Francisco’s ordinance
is consistent with the Costa-Hawkins Act in allowing a landlord to set the initial rental
rate on vacated units. (S.F. Admin. Code, § 37.3, subd. (d)(1).)” (Mosser Companies,
supra, 233 Cal.App.4th at p. 511.) Determining when a tenancy ends and a new tenancy
begins―so that the landlord may reset the rent without the constraint of local rent
control―is the question posed by this appeal.
       Mosser Companies, supra, 233 Cal.App.4th 505, dealt with a similar set of facts
and the identical statute. In Mosser Companies, Brian, the current occupant of a rent-
controlled apartment on Fell Street in San Francisco, had moved into the apartment when
his parents took possession of it when he was 13 years old. (Mosser Companies, supra,
at p. 509.) Nine years later, after two of their three children left home, Brian’s parents
moved to a different location, but Brian, who was then 23 years old, stayed on in the Fell
Street apartment. (Ibid.) The landlord then announced it was raising the rent from
$1,681.75 to $3,295 on the theory that the “original occupants”―Brian’s parents―no
longer lived in the apartment. (Ibid.) On the question of whether Borjas was an “original



                                              5
occupant,” we find Mosser Companies to be materially indistinguishable from the case
before us.
          Drolapas argues an “original occupant” must be a “tenant that is a party to the
rental agreement.” Mosser Companies rejected that interpretation and decided that “the
son of parents who years before rented a unit in landlord’s building, and who with
landlord’s consent resided with his parents when the rental agreement was entered, is an
‘original occupant’ within the meaning of the statute, precluding the landlord from
establishing a new unrestricted rental rate for the apartment when the son remains in the
apartment after the parents have departed.” (Mosser Companies, supra, 233 Cal.App.4th
at p. 508.) Mosser Companies concluded that “the son, although a minor when the rental
agreement was entered and not a signatory to the rental agreement, is nonetheless an
‘original occupant’ entitled to the continued protection of the rent control provision.”
(Ibid.)
          That settles the first of the issues raised by Drolapas. “An ‘occupant’ is
commonly defined as ‘one who occupies a particular place; esp[ecially]: RESIDENT.’
(Merriam-Webster’s Collegiate Dict. (11th ed. 2007) p. 858, col. 1.) The plain meaning
of an ‘original occupant … who took possession of the dwelling or unit pursuant to the
rental agreement’ (§ 1954.53, subd. (d)(2)) is an individual who has resided in the
dwelling from the start of the tenancy with the landlord’s permission.” (Mosser
Companies, supra, 233 Cal.App.4th at p. 512.) Even as a six-year-old child when he
moved into the apartment, Borjas was an “original occupant” within the meaning of
section 1954.53, subdivision (d)(2). This holding is, of course, consistent with the ruling
of the Rent Board and the trial court in the present case.
          Whether Borjas “took possession” of the unit “pursuant to the rental agreement,”
(§ 1954.53, subd. (d)(2)) considering he was a minor when he entered into occupancy of
the apartment in 1995, was also settled by Mosser Companies: “ ‘Possession’ is a
commonly understood term normally referring to physical possession. Limiting the term
to parties to a legal agreement is inconsistent both with this common understanding and
with the terms used in the statute. The statute refers to an ‘occupant’ rather than a


                                                6
‘tenant,’ ‘lessee,’ or ‘party.’ These terms have distinct and well-established meanings,
making it unlikely the Legislature used the term ‘occupant’ when it meant party to a
rental agreement. That the Legislature’s use of the term ‘occupant’ was deliberate and
intended to signify something distinct from a party to the lease is confirmed when the
statute is read as a whole.” (Mosser Companies, supra, 233 Cal.App.4th at p. 513.)
       Finally, we address a portion of the statutory language not at issue in Mosser
Companies, namely the provision relating to subtenants who inhabited the rent-controlled
unit prior to the effective date of the Act. First, we find nothing inconsistent in the Rent
Board’s or trial court’s ruling that Borjas was both an “original occupant” and a
“subtenant.” Drolapas’s argument to the contrary is based on the notion that an “original
occupant” must be one who took possession as a “tenant that is a party to the rental
agreement.” Having rejected that premise, we also reject the notion that a single
individual cannot be both an “original occupant” and a “subtenant.”
       As we read the statute, when the original occupants have vacated a rent-controlled
unit, section 1954.53, subdivision (d)(2) allows rent increases “to a lawful sublessee or
assignee who did not reside at the dwelling or unit prior to January 1, 1996.” This
language necessarily implies that the landlord may not increase the rent without limit if
the sublessee or assignee did reside in the unit prior to January 1, 1996. We find no error
in the Rent Board’s or court’s conclusion that Borjas was a “subtenant who resided in the
unit prior to January 1, 1996.” The court correctly saw the subtenant issue as an
“alternative holding provid[ing] a distinct ground for denial of the writ petition and
declaratory relief claim.”
       Drolapas argues Borjas did not become a subtenant until 2011 because his parents
continued as the tenants under the lease and continued paying the rent. According to
Drolapas, the statute prohibits open-ended rent increases only for those who were
subtenants prior to January 1, 1996. But that temporal connection is not contained in the
language of the statute, and we will not read such a limitation into it. The clause has two
requirements: (1) the individual must be a “lawful sublessee or assignee,” and (2) he or
she must have “reside[d] at the dwelling or unit prior to January 1, 1996.” (§ 1954.53,


                                              7
subd. (d)(2).) There is no requirement under the statute that those two qualifications must
have been met simultaneously. Borjas was a subtenant beginning in 2011, and he did
reside in the unit prior to January 1, 1996. Because he met both requirements, he was
entitled to the protection of the local rent control ordinance.
       Certain countervailing policy arguments might well counsel against allowing a
rent-controlled apartment to be passed on “from friend to friend or generation to
generation.” But it seems to us the risk of that happening can be overstated easily.
“[T]he protection afforded here is limited in scope to lawful and original occupants. A
rent-controlled apartment cannot, as landlord fears, be passed on freely ‘from friend to
friend or generation to generation.’ Only those occupants who reside in the apartment at
the start of the tenancy and do so with the landlord’s express or implicit consent are
protected from unregulated rent increases.” (Mosser Companies, supra, 233 Cal.App.4th
at p. 516.)
       In any event, as Mosser Companies pointed out: “Although a compelling policy
argument can be made for qualifying rent control restrictions when a tenancy passes from
one generation to the next, the current statute incorporates no such qualification. We
therefore conclude that the rent board correctly prohibited landlord from increasing the
rent to the son above the rent control limit when his parents vacated the apartment, and
the trial court correctly denied landlord’s petition for a writ of mandate challenging the
rent board’s action.” (Mosser Companies, supra, 233 Cal.App.4th at p. 508.)
       We too conclude: “Whether the application of rent control protection to occupants
who begin their residency as minors is wise economic policy is a question for legislative,
not judicial, determination. Local and state legislators are free to make these public
policy determinations provided the rent regulation does not deprive property owners of a
fair return on their investment. (Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1021.)
No claim of a confiscatory taking is raised in this case. We must therefore apply the law
as written, and the current law does not permit vacancy decontrol until all lawful
occupants residing in a dwelling at the start of the tenancy vacate the premises. (§
1954.53, subd. (d)(2) & (3).)” (Mosser Companies, supra, 233 Cal.App.4th at p. 517.)


                                              8
                                 DISPOSITION
     The judgment is affirmed.




                                          _________________________
                                          Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




                                      9
Filed 7/9/15 after filing
nonpublished opinion 6/16/15
                               CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                     DIVISION FOUR


T & A DROLAPAS & SONS, LP,
        Plaintiff and Appellant,
                                                   A139432
v.
SAN FRANCISCO RESIDENTIAL RENT                     (City & County of San Francisco
STABILIZATION AND ARBITRATION                      Super. Ct. No. CPF-12-511944)
BOARD et al.,
                                                   ORDER CERTIFYING OPINION
        Defendants and Respondents;                FOR PUBLICATION
GERALD BORJAS,
        Real Party in Interest and
        Respondent.




THE COURT:
        The opinion in the above-entitled matter filed on June 16, 2015, was not certified
for publication in the Official Reports. For good cause, the request for publication is
granted.
        Pursuant to California Rules of Court, rules 8.1105 and 8.1120, the opinion in the
above-entitled matter is ordered certified for publication in the Official Reports. Listing
of counsel is attached hereto.




Dated: _________________                         ________________________________

                                                 Ruvolo, P.J.
T & A Drolapas & Sons, LP v. San Francisco Residential Rent Stabilization and
Arbitration Board (A139432)


Trial court:                       City & County of San Francisco Superior Court


Trial judge:                       Hon. Ronald Quidachay




Counsel for Plaintiff/Appellant:   Fried & Williams, Clifford E. Fried


Counsel for Defendants/
Respondents:                       San Francisco Office of the City Attorney
                                   Dennis J. Herrera, City Attorney,
                                   Wayne K. Snodgrass, Deputy City Attorney
