Jun Wai TOM et al., Plaintiffs and Respondents,
v.
CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants;
San Francisco Tenants Union, Intervenor and Appellant.
Court of Appeal, First District, Division Five.
*15 Dennis J. Herrera, City Attorney, Andrew W. Schwartz, and Susan Cleveland-Knowles, Deputy City Attorneys, for Defendants and Appellants.
Randall M. Shaw, San Francisco, Stephen L. Collier, Tenderloin Housing Clinic, Inc., for Intervener and Appellant.
Andrew M. Zacks, James B. Kraus, Paul F. Utrecht, Barbara Herzig, Herzig & Berlese, San Francisco, for Plaintiffs and Respondents.
*14 STEVENS, J.
The trial court ruled that a local San Francisco ordinance, seeking to discourage persons from acquiring private residential property using tenants in common (TIC) *16 agreements, violated the constitutional rights of privacy and equal protection guaranteed by the California Constitution, and was preempted by the state Ellis Act, Government Code, section 7060 et seq. We affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
There is no dispute concerning the relevant facts in this appeal, but certain background information is necessary for an understanding of the legal issues presented. In general, the coowners of real property who are TIC each have an equal right to occupy their property. (See Bakanauskas v. Urdan (1988)
Due to the high cost of acquiring residential real property in certain California cities in the past decade, many home buyers acquire multi-unit buildings as TIC, and then the TIC make agreements among themselves, to give each owner an exclusive right of occupancy (ERO) in a particular dwelling unit within the overall TIC property. (See Bakanauskas, supra, 206 Cal.App.3d at pp. 628-630,
The San Francisco Board of Supervisors passed the ordinance in issue in this appeal in order to discourage the use of TIC agreements in the conversion of rental housing to owner occupied housing, by regulating and forbidding such ERO agreements. The San Francisco City (City) ordinance requires that all parties to a TIC agreement have a right of access to all units on the property, i.e., they cannot agree to occupy separate units with an exclusive right of occupancy. The ordinance does this by amending the San Francisco Subdivision Code in numerous respects, by adding language to sections 1302, 1308, 1359, 1388, 1396, and 1396.1 so as to regulate and require recordation of ERO's.
The most relevant amendment is the new language of section 1316, subdivision (b) of the San Francisco Subdivision Code, which provides: "An owner of an undivided interest in common in real property containing three or more units shall not have the right of exclusive occupancy of any unit on the property except pursuant to an approved condominium, community apartment or stock cooperative subdivision."
The ordinance also contains exemptions from this rule for some, but not all, relatives, exempting persons who are "related to each other as grandparents, parents, brothers, sisters, children, grandchildren, or spouses, or are registered as Domestic Partners. . . ." The ordinance also exempts certain preexisting TIC's, established before July 15, 2001.
The effect of the ordinance is that unrelated persons who reside in multi-unit buildings subject to the ordinance would be required to share occupancy of their dwelling units with each other, or could not prevent other cotenants from entering their private living space.
Former Mayor Willie Brown initially vetoed the City ordinance, citing concerns as to its validity and wisdom, but the City board of supervisors overrode his veto.
Respondents in this appeal are homeowners, tenants, and landlords who desire to occupy or convert property using a TIC agreement, with an ERO for each of their separate units. They brought this action seeking a writ of mandate to overturn the ordinance, contending the ordinance violated their constitutional rights of privacy in *17 their homes, violated equal protection principles, and was preempted by the state Ellis Act, Government Code sections 7060 et seq.
The lower court granted the writ of mandate, as well as the related motion for summary judgment, ruling that the ordinance was preempted by the statewide Ellis Act, and was in violation of constitutional rights to privacy and equal protection. This appeal followed.
II. DISCUSSION
A. THE CITY ORDINANCE VIOLATES THE CONSTITUTIONAL RIGHT OF PRIVACY IN THE HOME.
1. Standard of Review
In granting the petition for writ of mandate and motion for summary judgment, the trial court ruled as a matter of law that the City ordinance constitutes a facial violation of the constitutional rights of privacy and equal protection, and is preempted by the Ellis Act. We review such legal conclusions de novo. (See Burden v. Snowden (1992)
2. The Constitutional Right of Privacy
Article I, section 1 of the California Constitution provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
A privacy claim may be asserted by private citizens against a governmental entity. (Hill v. National Collegiate Athletic Assn. (1994)
We must first determine as a question of law whether a legally recognized privacy interest exists. (Hill, supra,
Even if a plaintiff establishes these three elements of an invasion of privacy claim, a defendant may negate any of the three elements by proving, as an affirmative defense, "that the invasion of privacy is justified because it substantively furthers one or more countervailing interests." (Hill, supra,
a. Legally Protected Privacy Interest
"Legally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (`informational privacy'); and (2) interests in making intimate personal decisions *18 or conducting personal activities without observation, intrusion, or interference (`autonomy privacy')." (Hill, supra,
We agree with the trial court that there is an "autonomy privacy" interest in choosing the persons with whom a person will reside, and in excluding others from one's private residence. Such was the case in City of Santa Barbara v. Adamson (1980)
The City does not directly dispute that privacy rights are implicated where the ordinance applies, but first suggests the ordinance would not apply to TIC's created before the effective date of the ordinance. This is true, but it is beside the point. Obviously, where the ordinance does not apply, it could not cause any privacy violation. Our focus is on persons and properties that would be affected by the ordinance. "`The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.'" (American Academy of Pediatrics v. Lungren (1997)
The City further suggests that, even where the ordinance applies, any governmental invasion is "indirect and attenuated." According to the City, the ordinance "does not require plaintiffs to own a unit without an ERO. It simply forces plaintiffs to choose between a TIC without an ERO and numerous other forms of occupancy." The City suggests the respondents should instead acquire one of the several types of homes not affected by the ordinance, such as a single-family house; or a unit not affected by the ordinance, because the TIC was formed prior to the effective date of the ordinance; or respondents should convert their homes into condominiums.
However, we repeat the observation of our Supreme Court that the "`proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.'" (American Academy, supra,
Similarly, in the present case, the respondents include persons for whom the ordinance is a very real restriction on their rights to enjoy privacy in their homes. If all of the respondents were financially able to afford single-family homes in the City, they could presumably buy other residences as well, but the entire purpose of a TIC is to allow homeownership to those who cannot afford single-family homes. Moreover, some persons presently live in multi-unit homes affected by the ordinance, and not in homes for which they could seek exemption under any exceptions to the ordinance. Even if the respondents were to convert their present homes into condominiums, this would require a waiting period of at least three years or more, under the City's ordinances, and during that time the respondents *19 would remain affected by the ordinance, which would continue to restrict their privacy. Significantly, in City of Santa Barbara, supra, 27 Cal.3d at pages 126-135,
The City also refers us to two cases to support its argument that no privacy right is implicated. We find these cases are distinguishable.
Ortiz v. Los Angeles Police Relief Assn. (2002)
Ms. Ortiz had voluntarily disclosed the relationship to her employer when she asked for a day off to marry a person she described as a prison inmate. (Ortiz, supra, 98 Cal.App.4th at pp. 1300-1306,
While Ortiz found a privacy interest was implicated, the privacy interest was outweighed by a legitimate employer interest in officer safety a conflict of interest rule designed to protect the safety of peace officers. (Oritz, supra, 98 Cal.App.4th at pp. 1312-1313,
We also find the City's reliance on Nieto v. City of Los Angeles (1982)
Of course, we do not consider a wrongful death statute, or a claim that the limitation of a right to sue to a spouse or other relative violates any constitutional principle. The question here is whether a constitutional right is implicated by an attempted governmental intrusion into privacy rights in homes. On this topic, our Supreme Court has ruled that such ordinances implicate privacy rights. (See City of Santa Barbara, supra, 27 Cal.3d at pp. 126-134,
In analyzing the question of whether a privacy right is implicated, we find guidance in a recent decision of the Second District, Coalition Advocating Legal Housing Options v. City of Santa Monica (2001)
The ordinance under review in CALHO sought to regulate the types and numbers of persons who could reside in a multi-unit home on the same residential property. The question for the court was whether this local ordinance violated the constitutional right of privacy of homeowners. The Second District Court of Appeal, analyzing the issue under Hill, supra, and City of Santa Barbara, supra, found that the local ordinance unconstitutionally infringed the right of privacy in the home: "It is clear from City of Santa Barbara that the right to choose with whom to live is fundamental not `so insignificant or de minimis an intrusion' as to require no justification and nothing in any subsequent case suggests otherwise. The suggestion that this right may be curtailed when the home is constructed with independent living facilities included is unpersuasive. The Hill threshold requirements are plainly met." (CALHO, supra, 88 Cal.App.4th at pp. 460-461,
b. Reasonable Expectation of Privacy
"`The extent of [a privacy] interest is not independent of the circumstances.'" (Hill, supra,
First, it is obviously reasonable to expect privacy in one's own home. (See Hill, supra,
The City claims there is no reasonable expectation of privacy, because under common law principles, cotenants are equally entitled to share possession of the entire property, absent an agreement to the contrary among the cotenants creating an exclusive right of occupancy. (See Bakanauskas, supra, 206 Cal.App.3d at pp. 628-630,
The City also suggests the privacy invasion caused by the ordinance is not "serious," inasmuch as some persons might consent to it. We address the City's argument concerning the seriousness of the privacy invasion in more depth in the next section of this opinion. However, for present purposes of assessing the reasonableness of the expectation of privacy in the home, we point out that respondents obviously did not consent to any intrusions into their privacy, and the concept of consent appears to be misplaced. No reasonable person would consent to having neighbors or other unwanted persons wandering through one's home or occupying it. Indeed, one purpose of the ordinance was to discourage the use of TIC's by placing the nonconsensual condition of lack of privacy upon their use. We again emphasize that we are dealing with the home, which has traditionally been subject to the highest protection against intrusions. (See CALHO, supra, 88 Cal.App.4th at pp. 460-461,
c. Seriousness of the Invasion
The last threshold element under Hill involves the seriousness of the invasion of privacy. "No community could function if every intrusion into the realm of private action, no matter how slight or trivial, gave rise to a cause of action for invasion of privacy. `Complete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he is a part.' [Citation.] Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right." (Hill, supra,
As we have indicated, the City suggests this privacy invasion is not "serious." According to the City, persons may choose whether to "consent" to or "forgo" such an invasion of their privacy, by deciding whether or not to buy a home affected by the City's TIC ordinance.
The City's argument for application of an implied consent doctrine in this context seems misplaced. If the City ordinance did not affect or apply to a certain property, then obviously there would be no question of any privacy violation. We are concerned, however, only with homes that were potentially subject to the City ordinance. As to them, we agree with the trial court that having unwelcome persons residing in one's home, or roaming throughout one's home, would amount to a serious invasion of privacy rights. (See Hill, supra,
The City's argument is also misplaced because the main purpose of the ordinance was to prevent, discourage or limit the use by homeowners of the Ellis Act the City did not expect or wish homeowners to consent to the privacy violation in issue. It employed a limitation on privacy to force nonconsenting homeowners to consent to the new restrictions on TIC's in the future, or not invoke the Ellis Act. There is no precedent for such an expansive and counterintuitive concept of "consent" in privacy cases relating to the home. Such mandatory state intrusions and regulations have not historically been permitted. (See City of Santa Barbara, supra, 27 Cal.3d at pp. 126-134,
To support its "consent" argument, the City relies on the very different factual setting of Hill, supra, 7 Cal.4th at pages 41-44,
Here, all of the relevant factors weigh very differently from the Hill situation. The present case concerns privacy rights in the home, not in a public or semipublic athletic setting. We are not asked to consider privacy rights that have already been partially relinquished through one's consensual participation in a sporting event, and our case does not concern the minimal intrusion of a same-sex observation while dressing, such as had already become commonplace in locker rooms. And, of course, we do not consider one's participation in a sporting event where there is no constitutional right to compete. The present case instead concerns the home a place that is traditionally protected most strongly by the constitutional right of privacy. (See City of Santa Barbara, supra, 27 Cal.3d at pp. 126-134,
d. No Sufficient Justification
Because we conclude that respondents carried their burden of demonstrating a serious invasion of their reasonable privacy interests, the burden shifted to the City to show "that the invasion of privacy is justified because it substantively furthers one or more countervailing interests." (Hill, supra,
The City did not bear its burden of demonstrating a sufficiently strong countervailing interest, and in fact the City contends it had no duty under Hill to do so. We note, however, that the City does maintain in other related contexts that it had an interest in enacting the ordinance in order to preserve rental housing, by limiting the right of homeowners under the Ellis Act to go out of the business of renting, and in possibly "protecting consumers" by explicitly stating that owners of TIC's were allowed to enter each other's homes. We will consider these factors as the City's expression of countervailing interests.
First, we find it difficult to understand how violating privacy rights protects the consumers whose privacy is being violated. The City must provide a justification for the privacy violation in issue, not simply a general assertion that a law might serve some possible public goal. (See Hill, supra,
The state Ellis Act generally forbids local authorities from pursuing its arguably laudable goal by the particular means in question here. That act prevents *24 local jurisdictions, such as the City, from passing ordinances that are intended to limit the right of landlords and homeowners to go out of the business of renting. (Channing Properties v. City of Berkeley (1992)
Second, and more critically, a governmental interest in precluding homeowners from going out of the landlord business would not justify an extreme privacy violation, such as rendering homeowners unable to determine the persons with whom they should live, or forcing them to share their homes with others who are unwelcome. (See Hill, supra,
e. Feasible and Effective Alternatives
Had the City met its burden of articulating a countervailing governmental interest, we would then proceed to the next stage of the Hill analysis: "The plaintiff, in turn, may rebut a defendant's assertion of countervailing interests by showing there are feasible and effective alternatives to defendant's conduct which have a lesser impact on privacy interests." (Hill, supra,
f. Conclusion on Constitutional Privacy Violation
A constitutional privacy violation was demonstrated, and the trial court properly ruled the City ordinance was unconstitutional on this ground. (See Hill, supra, 7 Cal.4th at pp. 39-40,
B. OTHER ISSUES
1. Dismissal of Cross-appeal
Respondents also filed a cross-appeal, arguing the trial court erred in overturning the entire ordinance, rather than just severing the unconstitutional portions of it. The cross-appeal has been dismissed by stipulation, after the completion of briefing, so we need not address the legal issues raised in it. (Order dated Dec. 24, 2003.)
*25 2. Judicial Notice Request
Appellants requested that we take judicial notice of certain portions of the legislative history of the Ellis Act and its amendments. We find such judicial notice unnecessary, and the legislative history of the Ellis Act is irrelevant to our determinations, so we will deny the request for judicial notice. (See Mangini v. R.J. Reynolds Tobacco Co. (1994)
III. DISPOSITION
The judgment is affirmed. The request for judicial notice is denied. Costs to respondents.
We concur. JONES, P.J., and GEMELLO, J.
NOTES
Notes
[1] In this context we need not decide whether the City ordinance is completely preempted by the Ellis Act, and we simply observe that state law as embodied in the Ellis Act provides an overriding public policy that deprives the City of the required strong justification for the privacy violation resulting from the operation of the City ordinance. (See Hill, supra,
[2] Respondents also contended in the trial court that the City ordinance violated their equal protection rights, and was preempted by the Ellis Act. We have found the ordinance unconstitutional as a privacy violation, and therefore the additional questions of whether it is also unconstitutional as a violation of equal protection, or is preempted by the Ellis Act, are issues we need not address. (See Finnie v. Town of Tiburon (1988)