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CIty Council Meeting February 2. 1999
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FER - 2 1999
TO
Mayor and City Council
FROM
City Staff
SUBJECT.
An Ordinance of the City Council of the City of Santa MOnica
Establishing Election procedures for the Conduct of the Special
Two-Day MunIcipal Election to be Held on Apnl 24 and 25, 1999
Introduction
At Its meeting of December 22, 1999, the City Council called for a special municipal
electIon to be held over a two-day penod on Apnl24 and 25, 1999, for the purpose of
filling an unscheduled vacancy on the City Council left by the resignation of a
Councllmember, and to place a measure on the ballot
Election Procedures
Section 1403 of the City Charter directs that unless otherwIse provided by ordmance,
all elections shall be held In accordance With the regulations of the State ElectIons
Code. The ElectIons Code does not provide for the holding of a two-day election
Attached to thIS staff report IS an ordInance setting the procedures to conduct the two-
day election fairly, Impartially and effiCiently
Budget/Financial Impact
Adoption of thiS ordinance Will not cause any budget or financial Impact Funds for thiS
election were approved on December 22, 1998
Recommendation
Staff recommends that Council hold Introduce and adopt the ordinance as presented
Prepared by:
Mana M Stewart, City Clerk
Joe Lawrence, Assistant City Attorney
Attachment
OrdInance
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FEB - 2 1999
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City Council Meeting 1-26-99
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JAN 2 6 1999
Santa Monica, California
TO Mayor and City Council
FROM City Attorney
SUBJECT Proposed CIty Charter Amendment Protecting Residential Tenants Against
EVictions Based Upon Immatenal or Insubstantial ViolatIons or Upon Terms
Which the Landlord Has Waived, Or Is Estopped To Assert and Resolution
to Place the Proposed Charter Amendment on the Apnl, 1999 Ballot
IntroductIon
At Its meeting of January 19, 1999, the City Council directed the City Attorney's office to
prepare a proposed City Charter amendment Intended to protect residential tenants
against eVictions based upon Immatenal and Insubstantial Violations of rental agreements
and against eVictions based upon covenants or obligations which the landlord has
prevIously waived or IS precluded by conduct from enforcing The Council further directed
that staff prepare the documents necessary to place the proposed amendment on the
Apnl, 1999 municipal ballot ThiS Staff Report and the accompanYing documents respond
to those directions
Back~round
On a number of occasions In the last two years, the CIty Council has heard public
testimony or otherwise receIved reports of growing numbers of residential eVictIons based
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upon violatIons of rental agreements which are tnvlal or which relate to conduct by the
tenant which the landlord has tacitly approved by inaction or other apparent assent Many
examples Involve pets In one class of pet situations, the tenant has had a pet for many
years and the landlord knows It and has never objected Suddenly, the landlord serves
notice that the tenant must either get rid of the pet or vacate the Unit In these situations,
whatever the rental agreement says, the tenant has assumed that the landlord's conduct
In allOWing the pet meant that the landlord knowingly assented to Its presence In a
slightly different class of reported pet Situations, the tenant Irves In a bUilding where other
tenants have pets Based upon thiS fact, the tenant acquired a pet In reliance upon the
landlord's conduct In allOWing pets and was later served with a notice to cure
Other kinds of reported Situations Include those In which the tenant makes substantial
Improvements or modifications to the rental unit Such modifications may have been
undertaken In reliance upon the landlord's past conduct or the landlord may Simply have
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assented to the Improvement after the fact Later, the tenant receives a notice to wcure"
the "breach" by removing the Improvements or modIfications - which may be very costly
or difficult
Community members have expressed concern that eVictions undertaken In such Situations
are unfair The tenant may lose hiS or her home based upon conduct which he or she
reasonably believed was not objectionable to the landlord Moreover, In addition to lOSing
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his or her home. the tenant may be forced to move out of the City because rents are
increasing and there IS a shortage of available units
California law already recognizes pnnclples and defenses which may assist a tenant In
these types of situations For Instance, the California CIvil Code Incorporates basIc
precepts of equity, including that "He who consents to an act IS not wronged by It,"
W[a]cqulescence In error takes away the rrght of objecting to It," and "[t]he law disregards
trrfles." CIvil Code Sections 3515, 3516, 3533 Moreover, forfeitures are generally
disfavored because they work very harsh consequences See, e q , CIvil Code Section
1442 [requlrrng that a forfeiture condition be strrctly Interpreted against the party which It
benefIts] Moreover, at least In some contexts, case law recognizes a variety of defenses
which promote fairness Thus, the law may protect a tenant who substantially complIes
wIth the terms of his or her rental agreement against eViction based on a tnvlal breach
See Union 011 Co V Chandler, 84 Cal Rptr 756 (1970) Moreover, a tenant may be able
to defend In an unlawful detainer proceedIng based upon proof of waiver or estoppel See
DRG/Beverly Hills, Ltd V Chopstlx Dim Sum Cafe & Takeout III, Ltd ,35 Cal Rptr 2d 515,
518 (1994) [Waiver IS the intentional relinqUIshment of a known nght after knowledge of
the facts, estoppel may anse where the conduct of one Side Induces the other to change
position In such a way that he or she would be Injured If the first party were permitted to
repudiate the conduct] Based upon these pnnclples, a landlord may be unable to eVict
a tenant If (a) the breach IS minor or merely technical, (b) the landlord has expressly or
Impliedly relinqUIshed the right to enforce the particular rental agreement prOVIsion by
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previously failing to object to a known breach, or (c) the landlord leads the tenant to
believe that stnct compliance will not be reqUired and the tenant acts accordingly to his or
her detnment However, despite the fact that they are recognized In California law, the
extent to which these protections actually shield residentIal tenants from eVIction IS
uncertain
DIScuSSion
Legal staff communicated CounCil's direction to Rent Board administration and asked for
suggested modifications to City Charter Sectton 1806 which specifies what constitutes
"good cause" for an eVictIon from a controlled rental unit Subsection (b) establishes that
Violation of a term or condition of the tenancy, other than the covenant to pay rent,
constttutes good cause If the tenant IS given the opportunity to cure The suggested
modifications would amend subsectIon 1806(b) by adding requirements of substantiality
and matenallty and also by precluding eVIctions where the landlord has expressly or
Impliedly relmqUlshed the nght to enforce and where the landlord has led the tenant to
beheve that stnct comphance Will not be reqUired and the tenant has acted accordingly to
hiS or her detnment Stated otherwise, the proposed modifications would provide express,
local statutory recognitIOn of defenses based upon the trivial nature of the alleged breach
or upon waiver or estoppel
The proposed additions to Section 1806 would not preclude tenants from asserting any
other defenses which the law may make available to them For Instance, the law presently
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recognizes defenses based upon the fact that the lease provIsIon In question IS not
"matenal" and upon the claim that the landlord has commItted fraud Specific references
In Section 1806 to defenses based upon the tnvlallty of the breach, or waiver or estoppel
would not preclude tenants from asserting other defenses available as a matter of state
law
If the proposed or similar language were added to City Charter Section 1806(b), Rent
Board administration adVises that the Rent Board would likely promulgate regulations
Implementing these protections
In the course of giving staff directIon, the CounCil noted the POSSibility that proposing the
subject amendments might have the unrntended consequence of prompting landlords to
Immediately undertake eVictIons In fear that passage of the proposed measure would
diminish their rights and options One counCil member asked whether staff could propose
any action which could be taken to avert thiS POSSIbility We conferred With Rent Board
administration about thiS As of the preparation of thiS report, staff has been able to
Identify only two general options either providing Incentives to landlords not to eVict or
attempting to make the modIfIcations retroactive Rent Board administration noted the
pOSSibility that a tenant could argue that the date of the notice terminating a tenancy might
be taken Into account by a court as indicative of the landlord's Intent to aVOid the
consequences of the proposed amendments However, It IS not clear that the landlord's
Intent would be relevant The fact that state law already recognizes the defenses
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established by the subject amendments may also reduce the risk that this legislatIon will
prompt eViction actions
BudqetlFlnanclallmpact
There IS no budget or financial Impact to the City as a result of the proposed City Charter
amendment
Recommendation
Rent Board administration recommends that the CounCIl place the proposed language on
the Apnl, 1999 ballot
PREPARED BY
Marsha Jones Moutne, City Attorney
Joseph Lawrence, ASSistant City Attorney
Barry Rosenbaum, Senior Land Use Attorney
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