Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC100643 Diana M. Wheatley, Judge.
Greg J. Venturi for Plaintiffs and Appellants Mark A. Ozzello and Emerson Santos.
Sonya Bekoff Molho for Defendants and Respondents Roland Vollmann and Meta Vander Meyden.
Marsha Jones Moutrie, City Attorney, Joseph Lawrence, Assistant City Attorney, and Eda Suh, Deputy City Attorney, for City of Santa Monica, as Amicus Curiae on behalf of Defendants and Respondents.
PERLUSS, P. J.
Mark A. Ozzello and Emerson Santos, co-owners of a condominium unit (unit 2) in a building located on Princeton Street in Santa Monica, gave notice to tenants Meta Vander Meyden and her husband, Roland Vollmann, of their intent to evict them so Santos and his wife could occupy the unit. After Vander Meyden and Vollmann objected on the ground Vander Meyden was protected from eviction under the Tenant Ownership Rights Charter Amendment, Santa Monica City Charter, article XVIII, section 2000 et seq. (TORCA), passed by Santa Monica residents in 1984 (Proposition X), Ozzello and Santos filed this action for declaratory relief. Following a bench trial the court ruled Vander Meyden, as a “participating tenant” under TORCA, could not be evicted. On appeal Ozzello and Santos contend the court incorrectly interpreted the governing provisions of TORCA and erred in awarding attorney fees to Vander Meyden and Vollmann. We affirm.
All section references are to the Santa Monica City Charter unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Vander Meyden signed a rental agreement for unit 2 in July 1986 before the Princeton Street building was converted into condominiums. The building was subject to Santa Monica’s rent control law (article XVIII, section 1800 et seq.), which permitted tenant eviction for occupancy by the landlord under certain circumstances. (Fmr. § 1806, subd. (h).)
The attorney fee provision in the rental agreement provides, “The prevailing party in an action brought for the recovery of rent or other moneys due or to be become due under this lease or by reason of a breach of any covenant herein contained or for the recovery of the possession of said premises, or to compel the performance of anything agreed to be done herein, or to recover for damages to said property, or to enjoin any act contrary to the provisions hereof, shall be awarded all of the costs in connection therewith, including, but not by way of limitation, reasonable attorney’s fees.” ~(CT 78)~
In 1990 enough tenants of the Princeton Street building agreed to purchase their units to qualify the building for conversion into condominiums under TORCA. Vander Meyden, however, did not purchase her unit and remained a renter. Nevertheless, Vander Meyden is classified under TORCA as a “participating tenant, ” defined as “Any tenant, including both cosigning and non-cosigning tenants, residing in the building at the date of the approval of the Tenant-Participating Conversion Application.” (§ 2001, subd. (j).)
Vollmann moved into unit 2 after the conversion, and in 2001 Vander Meyden and Vollmann were married. After Santos and Ozzello purchased the unit in 2008, they provided Vander Meyden and Vollmann with an eviction notice on the ground Santos and his wife intended to occupy the unit. Vander Meyden and Vollmann objected, contending, although the rent control law permits tenant eviction for owner occupancy, TORCA prohibits it for participating tenants.
On October 15, 2008 Ozzello and Santos filed a complaint and on November 10, 2008 a first amended complaint for declaratory relief, alleging TORCA protects senior participating tenants (that is, participating tenants who are 55 years old or older) from owner-occupancy eviction indefinitely, but non-senior participating tenants, like Vander Meyden, for only five years from the date of conversion. The amended complaint further alleged the City of Santa Monica, which maintained all participating tenants were protected indefinitely from termination of occupancy to allow an owner to move into their apartments, was interpreting and administering TORCA contrary to established rules of statutory construction and in an unconstitutional manner. The amended complaint alternatively alleged Vander Meyden lost her protected status when she temporarily abandoned the unit while she and Vollmann were having marital difficulties. In addition to Vander Meyden and Vollmann, the amended complaint named as defendants the City of Santa Monica and its city attorney, Marsha Moutrie.
The trial court (the Hon. John Segal) granted the city’s and Moutrie’s motion for summary judgment, finding TORCA prohibits the eviction for owner occupancy of all participating tenants at any time after conversion. Judgment in their favor was entered on June 24, 2009; that decision was not appealed.
Trial proceeded on October 19, 2009 against Vander Meyden and Vollmann before a different trial judge (the Hon. Diana Wheatley). At the outset of the bench trial counsel for Ozzello and Santos acknowledged Judge Segal had previously determined a participating tenant could not be evicted for owner occupancy and framed the issue to be tried as whether Vander Meyden had temporarily vacated the premises, thereby losing her TORCA protection. After presentation of the evidence, however, defense counsel conceded, “I don’t think we’ve really established that [Vander Meyden] was not a tenant during any of the periods.” Defense counsel argued Ozzello and Santos should nevertheless prevail because Judge Segal’s interpretation of TORCA was incorrect and Judge Wheatley was not bound by it.
On October 23, 2009 the trial court issued its statement of decision, finding “a ‘participating tenant’ can never be evicted for occupancy by an owner” under TORCA. The court further found Ozzello and Santos failed to establish Vander Meyden had moved out of the premises and thus she remained a participating tenant entitled to TORCA protection. Pursuant to the terms of the rental agreement, the court awarded Vander Meyden and Vollmann, as the prevailing parties, their costs and reasonable attorney fees. At a subsequent hearing the court set attorney fees at $7,675.
DISCUSSION
1. The Governing Statutory Framework
1. The rent control law
In 1979 Santa Monica voters adopted a rent control charter amendment in response to a housing shortage and rapidly rising rents, which were adversely impacting tenants, “especially the poor, minorities, students, young families, and senior citizens.” (§ 1800.) The new law established limits on the rent that could be charged, required just cause for any eviction and regulated removal of controlled rental units from the housing market. (Ibid.) Tenant eviction was permitted in the event the landlord or certain of his or her relatives intended to occupy the controlled rental unit and several additional conditions were satisfied. (Fmr. § 1806, subd. (h).)
We take judicial notice of Santa Monica’s Rent Control Charter Amendment, TORCA, ballot pamphlets relating to TORCA and City of Santa Monica City Attorney Informal Opinion 84-57, addressing the interpretation of TORCA, pursuant to Evidence Code sections 452, subdivisions (b) and (c), and 459.
Under the initial version of the rent control law, “landlords were prevented from converting their apartments into condominiums unless they obtained removal permits.” (Bohbot v. Santa Monica Rent Control Board (2005) 133 Cal.App.4th 456, 460 (Bohbot); fmr. § 1803, subd. (t).) The city was concerned that “large numbers of landlords might seek to avoid rent control by converting their units to condominiums.” (Santa Monica Pines, Ltd. v. Rent Control Board of City of The City of Santa Monica (1984) 35 Cal.3d 858, 868, disapproved on other grounds in City of West Hollywood v. Beverly Towers (1991) 52 Cal.3d 1184, 1192.) Accordingly, the Santa Monica Rent Control Board was authorized to approve a removal permit only after finding, among other things, that removal would not adversely impact the city’s low-income housing supply. (See Bohbot, at p. 465; Santa Monica Pines, Ltd., at p. 862, fn. 2 [setting forth text of fmr. § 1803, subd. (t)].) Under this regulatory scheme and provisions of the city’s general plan, condominium conversions were stringently restricted. (See Santa Monica Ballot Pamp., Spec. Elect. (June 5, 1984) analysis of Prop. X by city attorney (hereafter Pamphlet).)
2. The adoption of TORCA
In June 1984 Santa Monica voters adopted TORCA to facilitate the conversion of apartments into condominiums if “tenants representing two-thirds of the units agreed to the conversion and tenants representing 50 percent of the units indicated their intent to purchase the units.” (Bohbot, supra, 133 Cal.App.4th at p. 466; § 2002, subds. (f) & (h).) “[TORCA] is designed to permit tenants to enjoy the stability, security and financial benefits of ownership of their own housing units and at the same time to provide more protection than presently exists under Article XVIII of this Charter[, the rent control law, ] for Participating Tenants who may not choose to purchase their units and is designed to promote affordable housing opportunities for Low and Moderate Income Households.” (§ 2000, subd. (c).)
TORCA conversions were made easier than other condominium conversions by eliminating the removal permit requirement. (See § 2007 [“[s]ection 1803(t) of this Charter shall not apply to any building for which a Tenant-Participating Conversion Application has been approved”].) All other provisions of the rent control law, however, remain applicable to the converted units. (Bohbot, supra, 133 Cal.App.4th at p. 466; § 2004, subd. (b)(4) [“[e]ach unit shall at all times remain subject to all the terms and conditions of Article XVIII of this Charter, except [s]ection 1803(t)”].) Additionally, consistent with the purpose of TORCA to provide participating tenants who do not purchase their units with greater protection than they had under the rent control law, section 2004, subdivision (b)(3), prohibits their eviction for owner occupancy: “No participating tenant shall at any time after the approval of the Tenant-Participating Conversion Application be evicted for the purpose of occupancy by the owner, occupancy by any relative of the owner, or for demolition of the unit.” (See Bohbot, at p. 466 [“under a TORCA conversion, participating tenants could never be evicted for owner-occupancy”].)
Section 2004, subdivision (b)(3), in full provides, “No participating tenant shall at any time after the approval of the Tenant-Participating Conversion Application be evicted for the purpose of occupancy by the owner, occupancy by any relative of the owner, or for demolition of the unit. In the event the participating tenant does not exercise his or her right to purchase within the time period set forth in this Article, the owner may transfer the unit without any price restriction to the participating tenant or any other person. However, in the event such transfer is to someone other than the participating tenant, the transfer shall be expressly made subject to the rights of the participating tenant to continue to occupy the unit as provided for in this Article.”
Although section 2004, subdivision (b)(3), is clear that no participating tenant may ever be evicted for owner occupancy, section 2004, subdivision (b)(7), might appear to limit that indefinite protection to participating tenants who are senior citizens or disabled and to extend only five years of protection from such evictions for all other participating tenants. Section 2004, subdivision (b)(7), states, “In addition to the protections of Subdivision (b)(3) and (b)(4) of this Section: [¶] (A) All non-purchasing Participating Tenants who are senior citizens or disabled on the date of filing the Tenant-Participating Conversion Application and who personally occupied a rental unit in the qualifying building continuously for at least six (6) months immediately preceding the date of the filing of the Tenant-Participating Conversion Application shall be given the nonassignable right to continue to personally reside in their unit as long as they choose to do so subject only to just cause evictions provided that the eviction is not for the purpose of the occupancy by the owner, occupancy by any relative of the owner, or demolition of the unit.... [¶] (B) All other non-purchasing Participating Tenants who personally occupied a rental unit in a qualifying building continuously for at least six (6) months immediately preceding the date [of] filing the Tenant-Participating Conversion Application shall be given the nonassignable right to continue to personally reside in their unit subject only to just cause eviction for a period of five (5) years from the date the unit is first offered for sale. No eviction shall be allowed during this time period except for just cause provided the eviction is not for the purpose of occupancy by the owner, occupancy by any relative of the owner, or demotion of the unit.... ”
The potential for confusion arising from section 2004, subdivision (b)(3)’s unambiguous statement that participating tenants may never be evicted for owner occupancy and the five-year limitation expressed in section 2004, subdivision (b)(7), for nonparticipating tenants who are neither senior nor disabled was recognized by a Santa Monica councilmember before TORCA was adopted. (See Bohbot, supra, 133 Cal.App.4th at p. 466, fn. 5.)In response to the councilmember’s request for clarification, on May 21, 1984 the city attorney issued Informal Opinion No. 84-57 (Opinion 84-57), generally addressing the interpretation of proposed section 2004, subdivision (b)(7), including whether “the additional protections contained in subdivision (b)(3) last only for five years for non-senior and non-disabled participating tenants.” (Opn. 84-57, at p. 5.) The city attorney concluded they do not, explaining section 2004, subdivision (b)(7), is essentially a fail-safe provision in the event the rent control law were to become inoperative: “First, subdivision (b)(3) clearly applies to owner-occupancy evictions ‘at any time.’ Second, the purpose of the five-year period in the second paragraph is to provide protection against evictions in the event that the Rent Control Law is inapplicable. Thus, the last paragraph of subdivision (b)(7) defines ‘just cause’ eviction as those grounds contained in Section 1806[], subdivisions (a) through (g). [¶]... In such case, the second paragraph [i.e. section 2004, subd. (b)(7)(B)] essentially reenacts Section 1806, subdivisions (a) through (g), for a five year period. However, eviction for owner-occupancy (allowed by [fmr.] Section 1806(h), is not re-enacted at all, not even after five years. Instead, subdivision (b)(3) applies indefinitely.” (Opn. 84-57, at p. 5.)
TORCA was amended by initiative measure (Proposition V) in 1990. Among the amendments was the addition to section 2004, subdivision (b)(7), of the provision, “This Subsection shall be interpreted in accordance with Santa Monica City Attorney Informal Opinion Number 84-57. All amendments to this Subsection are declaratory of existing law.”
2. The Trial Court Correctly Interpreted TORCA
1. Standard of review and principles of statutory construction
Issues of statutory interpretation are questions of law subject to our independent or de novo review. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; see California Veterinary Medical Assn. v. City of West Hollywood (2007) 152 Cal.App.4th 536, 546.) The same principles of statutory interpretation apply to municipal charters and voter initiatives. (See People v. Neely (2004) 124 Cal.App.4th 1258, 1262; Bohbot, supra, 133 Cal.App.4th at pp. 462-463 [interpreting provisions of TORCA and the rent control law]; Diamond International Corp. v. Boas (1979) 92 Cal.App.3d 1015, 1030-1031.)
“[W]e must attempt to effectuate the probable intent of the Legislature, as expressed through the actual words of the statutes in question. [Citations.] ‘“Our first step [in determining the Legislature’s intent] is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning.”’” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 990.) “If the statutory language is unambiguous, ‘we presume the Legislature meant what it said, and the plain meaning of the statute governs.’” (People v. Toney (2004) 32 Cal.4th 228, 232; People v. Loeun (1997) 17 Cal.4th 1, 9 [“‘[i]n interpreting statutes, we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law’”].)
“‘Under familiar rules of construction, if it is impossible to harmonize or reconcile portions of a [charter], special provisions control more general provisions, and the general and special provisions operate together, neither working the repeal of the other. [Citations.] Recourse may be had to the whole instrument to ascertain the intent and purpose of its provisions and it should, if possible, be construed so as to avoid a repugnancy.’ [Citations.] Moreover the entire charter may be resorted to in order to determine the proper meaning of any section, and an interpretation which would render a portion meaningless should be avoided.” (Diamond International Corp. v. Boas, supra, 92 Cal.App.3d at p. 1031; see Landrum v. Superior Court (1981) 30 Cal.3d 1, 14.) Additionally, “[w]here the words of a voter initiative are at least arguably ambiguous, ” we may also “examine ballot materials as aids to ascertaining the intent of the electorate.” (Nakamura v. Superior Court (2000) 83 Cal.App.4th 825, 834.)
2. TORCA prohibits owner-occupancy eviction of participating tenants at any time after conversion
Without question, section 2004, subdivisions (b)(3) and (b)(7), could have been drafted more clearly to explain how the two provisions interact with each other and with section 1806 limiting termination of tenancy under the rent control law to situations in which “just cause” exists. The reconciliation of the language in the subdivisions advanced by Opinion 84-57-that subdivision (b)(7)’s protections are applicable only if the limitations on evictions contained in section 1806 were no longer in effect-is certainly reasonable and is consistent with the intent of TORCA as expressed in section 2000, subdivision (c), to provide participating tenants with additional protections. But we need not decide, as Ozzello and Santos appear to argue, whether a different interpretation of the statutory scheme as it existed prior to 1990 is more faithful to the statutory language and voters’ intent because the 1990 amendment to TORCA clearly established that meaning, at least prospectively. Because Ozzello and Santos purchased unit 2 long after the 1990 amendment, their rights were defined by the amended statutory scheme; as to them, it simply does not matter whether the 1990 amendment merely clarified or actually changed existing law. (See In re Marriage of Fellows (2006) 39 Cal.4th 179, 183 [“As a general rule, statutes do not operate retroactively ‘unless the Legislature plainly intended them to do so.’ [Citation.] Nonetheless, ‘a statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment.’ [Citation.] Such a statute ‘may be applied to transactions predating its enactment withoutbeing considered retroactive’ because it ‘is merely a statement of what the law has always been.’” Fn. omitted.]; Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243-244 [addressing retroactivity of statutory amendments that purport to only clarify the law].)
Although the court in Bohbot, supra, 133 Cal.App.4th at page 466, cited by the trial court, stated in dicta a participating tenant could never be evicted for owner occupancy, the Bohbot court was determining the very different question whether a non-participating tenant may be evicted for owner occupancy and did not address the potential conflict between section 2004, subdivisions (b)(3) and (b)(7) presented in the instant case.
Moreover, even if there actually was a conflict created by the rather convoluted language of section 2004, subdivisions (b)(3) and (b)(7), as initially enacted, we do not believe the voters intended anything less than permanent protection from owner-occupancy eviction for all participating tenants. Although Ozzello and Santos contend Opinion 84-57 is inconsistent with the information provided by the Santa Monica City Council to the voters, they fail to identify or cite to any such information. To the contrary, the analysis of Proposition X prepared by the city attorney and provided to the voters in 1984 is consistent with Opinion 84-57, stating, “If tenants do not purchase their units or transfer their rights, they may not be evicted for owner-occupancy and the rents remain subject to rent control. Even if portions of the Rent Control Law were invalidated, disabled tenants and senior citizens would continue to occupy their units indefinitely subject only to limited rent increases. Other tenants have similar protections, but only for five years.” (Pamphlet, supra, analysis of Prop. X by city attorney.) This analysis makes clear, whatever differences exist in the protections provided by section 2004, subdivisions (b)(3) and (b)(7), subdivision (b)(3) governs while the rent control law is in effect, as it continues to be. We doubt that the voters waded into the actual language of TORCA, spanning seven pages of two column print, in the middle of which they may have discovered the potential conflict.
Indeed, the question posed in the beginning of the ballot pamphlet for Proposition X is whether the city charter should be amended to “establish standards and procedures for Tenant-Participating Ownership of rental units while ensuring full protections for non-purchasing tenants... ?” (Pamphlet, supra, at p. 1 (italics added).)
Ozzello and Santos alternatively contend that treating senior and non-senior participating tenants in the same manner with respect to evictions for owner occupancy creates an unreasonable and unconstitutional classification. Ozzello and Santos fail to explain how providing two purportedly different groups the same protections from evictions involves any classification at all, let alone one that is unreasonable. Indeed, although the argument is identified on page nine of their opening brief, the following four pages of the brief are simply copies of earlier pages, discussing different issues. Accordingly, we decline to address this contention, which not only is incomprehensible but also lacks the required argument and citation to legal authority. (See Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793 [“‘[E]very [appellate] brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’”]; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [it is not the proper function of Court of Appeal to serve as “backup appellate counsel”].)
3. The Trial Court Did Not Err in Awarding Attorney Fees
Civil Code section 1717, subdivision (a), authorizes the trial court to award reasonable attorney fees to the prevailing party in “any action on a contract” if the contract specifically provides for an award of such fees. “If a contractual attorney fee provision is phrased broadly enough... it may support an award of attorney fees to the prevailing party in an action alleging both contract and tort claims: ‘[P]arties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract.’” (Santisas v. Goodin (1998) 17 Cal.4th 599, 608.) It is immaterial whether the action is styled as one for declaratory relief. If “the parties seek a determination of their respective rights under a contract, such as a lease, the action is ‘“on a contract” for purposes of section 1717.’” (Mitchell Land & Improvement Co. v. Ristorante Ferrantelli, Inc. (2007) 158 Cal.App.4th 479, 489; see Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 707.)
Civil Code section 1717, subdivision (a), provides in part, “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs. [¶]... [¶] Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit.”
An order granting or denying an award of attorney fees is generally reviewed for an abuse of discretion. (See, e.g., MHC Financing Limited Partnership Two v. City of Santee (2005) 125 Cal.App.4th 1372, 1397.) However, the question of a party’s entitlement to attorney fees is a legal issue subject to de novo review. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175-1176; Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424, 431; Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.) Similarly, we independently determine as a question of law the scope of a contractual attorney fee provision when the interpretation does not turn on extrinsic evidence. (Kalai v. Gray (2003) 109 Cal.App.4th 768, 777; Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th at p. 705.)
Ozzello and Santos contend the trial court erred in awarding attorney fees because their action concerns the proper interpretation of TORCA and neither alleges a breach of the rental agreement nor seeks to interpret it. This is an unduly narrow construction of their action, as well as the contractual attorney fee provision. The fee provision is not limited to breaches of the rental agreement; it permits recovery of attorney fees in an action for, among other things, “the recovery of possession of the premises....” While the interpretation of TORCA was central to Ozzello and Santos’s action, fundamentally they sought to recover possession of unit 2 so Santos and his wife could occupy it. (See Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1608 [“While respondent’s action implicated provisions of the San Francisco Rent Ordinance, in our opinion the suit fundamentally was based upon the lease, in that respondent sought compensation for appellant’s wrongful interference with respondent’s occupation and enjoyment of the leased premises. Thus, the attorney’s fees provision of the lease, through Civil Code section 1717, provides authority for our award to respondent, who clearly is the prevailing party herein.”].)
Moreover, interpretation of TORCA was not the only basis for Ozzello and Santos’s action. They alternatively contended, even if their proposed interpretation was rejected, Vander Meyden nevertheless lost her status as a participating tenant because she had temporarily vacated the premises. (Indeed, this was the basis for the trial on the merits.) Viewed alone, this theory clearly presents an action for recovery of the premises. That the action was also based on the interpretation of TORCA does not change its fundamental nature as one for the recovery of the premises. There was no error in awarding attorney fees to Vander Meyden and Vollmann.
DISPOSITION
The judgment is affirmed. Vollmann and Vander Meyden are to recover their costs on appeal.
We concur: WOODS, J., JACKSON, J.