Thomsen v. City of Escondido

KREMER, P. J.—I respectfully dissent.

Reading terms into Proposition K which are not there, the majority opinion upholds a preliminary injunction which restrains the City of Escondido (the City) from prohibiting a park owner’s raising the rent for a *898mobilehome park space when a coach changes hands. Because applying Proposition K precisely as written leads to just the opposite result, I would reverse the order granting a preliminary injunction.

The preliminary injunction is based on the theory the City was attempting to regulate activities assertedly not covered by the language of Proposition K. (MacLeod v. City of Los Altos (1960) 182 Cal.App.2d 364, 369 [6 Cal.Rptr. 326].) Although the standard of review for an order granting preliminary injunction is generally whether the trial court committed an abuse of discretion, the “likelihood of the plaintiff ultimately prevailing on the merits of the lawsuit occasionally ‘depends upon a question of pure law rather than upon evidence to be introduced at a subsequent full trial. ... If such a question of pure law is presented, it can sometimes be determinative over the other factor [(balancing the interim harm to the parties)], for example, when the defendant shows that the plaintiff’s interpretation is wrong as a matter of law and thus the plaintiff has no possibility of success on the merits. . . .’ [Citations.]” (Carsten v. City of Del Mar (1992) 8 Cal.App.4th 1642, 1649-1650 [11 Cal.Rptr.2d 252]; accord, Pacific Landmark Hotel, Ltd. v. Marriott Hotels, Inc. (1993) 19 Cal.App.4th 615, 624 [23 Cal.Rptr.2d 555].) Because the precise issue before the superior court involved interpretation of Proposition K’s terms and does not turn “upon conflicting evidence to be presented in a later plenary trial," this court may review the matter de novo. (19 Cal.App.4th at p. 624.) Since Thomsen’s proffered interpretation of Proposition K was wrong as a matter of law, I would conclude his chance of ultimate success on the merits of this lawsuit is nil and the injunction is thus improper. (Ibid.; Carsten v. City of Del Mar, supra, at pp. 1649-1650.)

In construing Proposition K, this court must ascertain the electorate’s intent so as to effectuate the ordinance’s purpose. (People v. Coronado (1995) 12 Cal.4th 145, 151 [48 Cal.Rptr.2d 77, 906 P.2d 1232].) In determining such intent, we must first examine the words of the ordinance. (Ibid.) Where, as here, the ordinance’s relevant language is clear and unambiguous, its plain meaning governs. (Ibid.) Courts may not interpret away clear language in favor of a nonexistent ambiguity. (Ibid.; In re Lance W. (1985) 37 Cal.3d 873, 886 [210 Cal.Rptr. 631, 694 P.2d 744].) Further, in such circumstances, courts may not resort to extrinsic sources such as ballot pamphlets. (People v. Coronado, supra, at p. 151; Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744 [38 Cal.Rptr.2d 650, 889 P.2d 970]; In re Lance W., supra, at p. 886.) Instead, courts must presume the electorate meant what it said. (People v. Coronado, supra, at p. 151.) However, in concluding Proposition K does not regulate mobilehome park space rent increases sought by park owners from prospective buyers of coaches presently located in their parks, the majority opinion contravenes those well-accepted rules of statutory interpretation by going beyond the ordinance’s *899plain language and effectively inserting a “vacancy decontrol" provision omitted by the electorate. (Code Civ. Proc., § 1858.)

Proposition K does not contain “vacancy decontrol” language expressly permitting a mobilehome park owner to increase rent immediately upon sale or transfer of a coach from one homeowner to another. Nonetheless, without identifying any ambiguity in Proposition K, the majority opinion interprets the ordinance as containing an implied “vacancy decontrol” provision. (Code Civ. Proc., § 1858; People v. Coronado, supra, 12 Cal.4th at p. 151; People v. Welch (1971) 20 Cal.App.3d 997, 1002 [98 Cal.Rptr. 113].) Such interpretation is not based on analysis of the precise language of Proposition K regulating rents charged for mobilehome park spaces. Instead, after straying into discourse on various conceptual labels (including “vacancy control,” “vacancy decontrol,” “economic eviction,” and “investment protection") not mentioned in Proposition K, the majority opinion simply concludes the ordinance must necessarily permit “vacancy decontrol” since it does not expressly or impliedly provide for “vacancy control.” However, in light of Proposition K’s plain language, proper analysis does not permit a finding the ordinance contains an implied “vacancy decontrol” provision.

On its face Proposition K regulates all rent increases. Except under limited statutory situations not at issue here (Civ. Code, § 798.17), the rent charged to prospective purchasers is not excluded from the ordinance’s scope of regulation. In plain terms Proposition K regulates rent charged for spaces in mobilehome parks and provides that any increase in such rent must be approved by the City’s mobilehome park rental review board. The ordinance includes clear proscriptive language fairly advising mobilehome park owners they “shall not demand, accept, or retain rent for a mobilehome space exceeding the rent” specified under various circumstances and shall not “send a notice containing the specific amount of a proposed rental increase" before receiving approval of a rent increase from the board. (Escondido Mun. Code, § 29-103.) Proposition K does not impose differing regulation depending on whether a coach has been sold or transferred or whether the “status” of a coach owner is existing or prospective. Instead, by regulating all space rent increases regardless of the coach owner’s status or the sale of the coach, the ordinance has the effect of imposing “vacancy control” without expressly mentioning such term. Since the language of Proposition K is clear and unambiguous, the majority opinion’s excursion “behind” the ordinance’s express terms to scour the ballot arguments in search of a contrary intent is unnecessary and improper. (In re Lance W., supra, 37 Cal.3d at p. 886; accord, People v. Coronado, supra, 12 Cal.4th at p. 151; Granberry v. Islay Investments, supra, 9 Cal.4th at p. 744.)

However, in contrast to the majority’s approach, applying the plain meaning of Proposition K’s language regulating space rent would give full effect *900to the terms of EMC section 29-103 and would not be inconsistent with Escondido Municipal Code section 29-101 ’s definition of “tenant.” (Code Civ. Proc., § 1858; People v. Coronado, supra, 12 Cal.4th at p. 151.) The ordinance refers to “tenant” primarily in the context of notice requirements (e.g., Escondido Mun. Code, §§ 29-104, subds. (c), (f), (i), 29-106) and nonpayment of illegal rents (Escondido Mun. Code, § 29-107). The ordinance mentions “proposed” tenants only with respect to notice of an intended change in the use of the park property. (Escondido Mun. Code, § 29-106, subd. (6)(b).)

Further, Proposition K’s lack of a specific procedural mechanism for a park owner to obtain approval of a rent increase for a prospective coach purchaser does not compel an interpretation based upon consideration of matters beyond the ordinance’s plain language. As discussed, Proposition K does not refer to prospective purchasers since its regulatory scheme is based on the mobilehome park space, not on the status of a coach owner or the transfer of a coach. When a coach located on a park space is sold or transferred, the existing regulated rent for that space continues in the interim until the prospective purchaser becomes a “tenant” and the park owner secures approval from the City for a rent increase. The majority opinion does not suggest any other interim mechanism is constitutionally compelled. Indeed, as acknowledged by Thomsen, any such specific interim procedure might unduly delay even the most routine coach sale.

Moreover, the majority opinion falls short in explaining how the implied “vacancy decontrol” provision it finds in Proposition K is to be implemented. Once vacated, rent for a space must be either “decontrolled” forever or re-controlled at some point. If “decontrolled” forever, the rent control scheme imposed under Proposition K would eventually wither over time, a result suggested nowhere in the ordinance’s language. In effect, “permanent decontrol” would add the words “except in the event a coach is sold, in which case the ordinance no longer applies” to Proposition K’s command in EMC section 29-103 that park owners “shall not demand, accept, or retain rent for a mobilehome space exceeding the rent” specified by the ordinance.

The majority avoids this result—but cannot avoid judicial amendment—by electing the opposite pole stating Proposition K imposes “vacancy decontrol/control,” to wit, that after “decontrol” in the event of a sale, space rent is later controlled under the regulatory scheme. (Maj. opn., ante, at p. 897, fn. 7.) However, the majority opinion’s proclamation that Proposition K contains an implied “vacancy decontrol/control” provision is devoid of analysis or textual reference. Instead—although not acknowledged by the majority opinion—to reach the majority’s conclusion, an implicit amendment of the ordinance’s language is necessary. If Proposition K establishes *901“vacancy decontrol/control,” Escondido Municipal Code section 29-103— which states the base rents upon which the board acts to approve increases— must be amended to provide generally that base rents are those charged in 1986 and those negotiated in the event of a coach sale. The point is not that “vacancy decontrol/control” is improper policy, only that implementing such policy requires reading new language into the ordinance. The only reading of Proposition K which avoids judicial amendment is that rents remain controlled in the event of a coach sale and may be increased only in accordance with the ordinance’s provisions.

Finally, the majority opinion’s reliance on Mobilepark West Homeowners Assn. v. Escondido Mobilepark West (1995) 35 Cal.App.4th 32 [41 Cal.Rptr.2d 393] is misplaced. That case involved the City’s ordinance No. 91-19 whose stated purpose was to prevent a mobilehome park owner from forcing a prospective coach purchaser to sign a long-term lease exempting the space from rent control as a condition of the park owner’s approving the sale. Concluding ordinance No. 91-19 impermissibly expanded Proposition K’s definition of “tenant” to include purchasers or prospective coach purchasers and placed new requirements on park owners and tenants for entering into long-term leases exempt from rent control, we determined the ordinance was invalid as constituting an improper attempt to amend a voter-approved initiative and also as preempted by Civil Code section 798.17. (Mobilepark West Homeowners Assn. v. Escondido Mobilepark West, supra, at pp. 38, 41-43.) The issue in that case was the propriety of the City’s attempt to prevent park owners from requiring existing and prospective owners of coaches to enter into long-term leases exempt from rent control. We were not presented with the issue now before us, to wit, whether Proposition K prohibits owners from raising the space rent charged to prospective purchasers absent compliance with the ordinance’s regulatory mechanisms or entry into a long-term lease exempted from rent control by Civil Code section 798.17.

In sum, in construing Proposition K as not regulating mobilehome park space rent increases sought by park owners from prospective buyers of coaches presently located in their parks, the majority opinion has improperly inserted a “vacancy decontrol” provision into the ordinance. (People v. Coronado, supra, 12 Cal.4th at p. 151; Granberry v. Islay Investments, supra, 9 Cal.4th at p. 744; In re Lance W., supra, 37 Cal.3d at p. 886; Code Civ. Proc., § 1858.) Nothing in the language of Proposition K excludes from its regulatory scope the space rent charged to a prospective purchaser of a coach. The only exception is a long-term lease exempted from rent control by Civil Code section 798.17. On the other hand, interpreting Proposition K as regulating the rent for a mobilehome park space regardless whether a *902coach located on the space is sold or transferred would give full meaning to the ordinance’s plain language without adding new terms. Such conclusion would rest not upon finding an implied “vacancy control” provision but simply upon giving effect to the plain meaning of the ordinance’s language tying rental amounts to spaces rather than to “tenants.” Thus, since under the circumstances presented here the rental amounts charged to prospective purchasers of coaches located in Thomsen’s mobilehome park are not excluded from Proposition K’s scope of regulation, I would reverse the order granting his request for preliminary injunction.

A petition for a rehearing was denied October 16, 1996. Kremer, J., was of the opinion that the petition should be granted. Appellant’s petition for review by the Supreme Court was denied January 15, 1997. Baxter, J., did not participate therein. Mosk, J., and Werdegar, J., were of the opinion that the petition should be granted.