City and >County>
of San Francisco>
v. Haight-Ashbury>
Neighborhood Council





















Filed 6/29/12
City and County of San Francisco v. Haight-Ashbury Neighborhood Council CA1/3

>

>

>

>

>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

>

California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST APPELLATE DISTRICT



DIVISION THREE




>

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. HAIGHT-ASHBURY NEIGHBORHOOD COUNCIL, Defendant and Appellant.

A133514 (San Francisco County Super. Ct. No. CUD-11-637573)

For
many years the Haight-Ashbury Neighborhood Council (the Council) has operated a
recycling center on Frederick
Street within San Francisco’s Golden Gate Park. In 2011 the City and County of San Francisco
(the City) terminated the Council’s tenancy and brought an unlawful detainer
action when it refused to vacate. The
City successfully sought summary adjudication of its claim for possession and
the Council’s affirmative defenses of discriminatory
and retaliatory eviction. The
Council now appeals from a final judgment entered on the grant of summary
adjudication after the City dismissed its claims for damages. We affirm.

BACKGROUND

It is
undisputed that the Council’s fixed-term lease expired in 2001, after which it
continued in possession of the recycling center as a periodic tenant. It is also undisputed that the Council
refused to vacate the premises after the City terminated its tenancy in the
spring of 2011. Rather, the parties
disagree whether the Council raised a triable issue of fact that its eviction
was illegal discrimination against its homeless clientele or in retaliation for
criticizing Lieutenant Governor Gavin Newsom, who was then the City’s mayor,
and opposing his positions on various public issues. In addition, The Council contends it was
error for the court to hear the City’s motion on shortened notice and protect
the lieutenant governor from deposition.


The
following evidence was before the court on summary judgment. The Council has operated the recycling center
since the 1970’s. After its lease
expired in 2001, the Council continued to operate the center under either a
quarter-to-quarter (according to the City) or year-to-year (the Council’s view)
holdover tenancy.href="#_ftn1" name="_ftnref1"
title="">[1]

Throughout
the duration of the Council’s tenancy, the City Recreation and Parks Department
(Rec & Park) received a steady stream of complaints from local residents
and neighborhood groups about noise, traffic and safety issues emanating from
the recycling center. Neighborhood
groups and City officials were also concerned that on-site cash redemption for
recyclables at the Council site contributed to a cycle of substance abuse and
illegal camping in Golden
Gate Park.

The
Golden Gate Park master plan identifies the recycling center as a non-conforming use
within the park. Early in 2010, Rec
& Park staff began meeting with community groups to discuss alternative
uses for the recycling center site, including a community garden. Staff then began work on the design, funding
and implementation of a community garden at the Frederick Street location, and presented a plan for the garden to the mayor’s staff
on April 30,
2010.
In June Rec & Park met with the mayor’s office about trash, noise
and illegal activity related to recycling centers in the City, including the
Council site.

Also
in June, Mayor Newsom submitted an ordinance that would restrict sitting or
lying on public streets (commonly known as “Sit/Lie”) for consideration on the
November 2010 ballot. Rec & Park’s
director of policy and public affairs attested that Sit/Lie was not discussed
in any conversations about the recycling center and was not a factor in Rec
& Park’s decision to terminate the Council’s tenancy.

On
December 2, 2010, the City Recreation and Park Commission unanimously approved
the staff recommendation for a community garden at the Council’s Frederick
Street site. The City served notice to
terminate the Council tenancy on December 4, but subsequently rescinded it
after the Council asserted the notice term was inadequate.

Mayor
Newsom was sworn in as Lieutenant Governor in January 2011. After that, the Council representatives met
with San Francisco’s new mayor, Hon. Ed Lee, to urge him to retain the
recycling operation at the Frederick Street site. Its efforts were unsuccessful, and in May the
City issued a new notice of termination effective June 30. The Council did not vacate, and the City
filed this unlawful detainer action seeking eviction and damages for fair
rental value since July 1, 2011. The
Council asserted as affirmative defenses that the eviction was in retaliation
for its exercise of First Amendment rights and constituted unlawful discrimination
against the homeless.href="#_ftn2"
name="_ftnref2" title="">[2]

The
Council noticed Lieutenant Governor Newsom’s deposition to be taken six days
before the trial date. The City moved
for a protective order on the ground, inter alia, that the Council had not
identified a compelling reason to depose him, and moved for summary
adjudication on its cause of action for possession of the premises and each of
the Council’s affirmative defenses. The
City argued the Council could not show that its eviction was in retaliation for
its opposition to the former mayor’s policies because the City had been
planning for an alternative use of the Frederick Street site >before the Council publicly criticized
Newsom and his policy positions.
Moreover, the City issued the operative termination notice four months >after Mayor Lee replaced Newsom in the
mayor’s office.

The
court granted the City’s motion for a protective order and prohibited the
Council from deposing Lieutenant Governor Newsom. At the hearing on its summary adjudication
motion, the City waived its claim to monetary damages and the court granted it
summary adjudication on the claim for possession and all of the Council’s
affirmative defenses, thus disposing of the entire action. The court explained that “there is no
evidence beyond mere speculation that the City terminated [the Council’s]
tenancy in retaliation for any protected conduct on the part of [the
Council]. To the contrary, the City put
forth uncontradicted evidence that it filed this action for the legitimate
purpose of implementing City policy on the Premises and evicting a tenant who
was illegally occupying the Premises despite no longer holding a lease to that
property. Moreover, this defense failed
to raise a triable issue of fact as to whether Lieutenant Governor Gavin Newsom
influenced this policy decision.” Furthermore,
the Council “failed to present any evidence beyond mere speculation in support
of [its discrimination] defense, failed to make the required legal showing, and
failed to otherwise raise a triable issue of material fact as to any element of
this affirmative defense.”

The
Council filed this timely appeal from the ensuing judgment and successfully
moved for a stay pending appeal.

DISCUSSION

Legal Standards

“The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843 (Aguilar).) The court must grant summary judgment if all
the papers submitted by the parties show there is no triable issue of material
fact and the moving party is entitled to a judgment as a href="http://www.mcmillanlaw.com/">matter of law. (Code Civ. Proc., § 437c,
subd. (c).) A plaintiff who moves for summary
judgment must prove each element of the causes of action. The burden then shifts to the defendant to
show the existence of one or more triable issues of material fact as to those
causes of action or defenses. (Code Civ.
Proc., § 437c, subd. (p)(1).)

“The
defendant or cross-defendant may not rely upon the mere allegations or denials
of its pleadings to show that a triable issue of material fact exists but,
instead, shall set forth the specific facts showing that a triable issue of material
fact exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c,
subd. (p)(1).) “There is a triable
issue of material fact if, and only if, the evidence would allow a reasonable
trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.” (Troyk v. Farmers Group, Inc. (2009)
171 Cal.App.4th 1305, 1321.)

Our review from a grant of summary judgment is de novo, and we
resolve all doubts in favor of the party opposing the judgment. (M.B.
v. City of San Diego (1991) 233 Cal.App.3d 699, 703–704.)

The City
Established That Council Cannot Support Its Retaliatory Eviction Defense

“In
unlawful detainer actions, tenants generally may assert legal or equitable
defenses that ‘directly relate to the issue of possession and which, if
established, would result in the tenant’s retention of the premises.’ [Citation.]
The defense of retaliatory eviction . . . is one such
defense. This defense bars a landlord
from recovering possession of the dwelling in an unlawful detainer action where
recovery is ‘for the purpose of retaliating’ against the tenant because of his
or her lawful and peaceable exercise of any rights under the law [citation] or
‘because of’ his or her complaints regarding tenantability.” (Drouet
v. Superior Court (2003) 31 Cal.4th 583, 587.) Whether or not the landlord’s
motive was retaliatory ordinarily raises a factual question, but if the
landlord establishes a legitimate explanation for its action on summary
judgment the court must then consider the tenant’s showing to determine if a
triable issue of fact exists. (>Rich v. Schwab (1984) 162 Cal.App.3d
739, 744; see Four Seas Inv. Corp. >v. International
Hotel Tenants’ Assn. (1978) 81 Cal.App.3d 604, 610.) The Council claims
that its evidence established the existence of disputed facts that require
trial on its retaliatory eviction defense.
We disagree.

The
City presented evidence that it terminated the Council’s tenancy to convert the
site to a community garden, and that planning for the garden began long before
the Council engaged in the protected speech that it claims motivated the
eviction. The City was exploring
alternative uses for the site by January of 2010, after years of community
discontent with the recycling center and related health and safety
concerns. By the spring of 2010, Rec
& Park was discussing the concept of a community garden with neighborhood
groups and the mayor’s office and working on its preliminary design, funding
and implementation. The criticism of
Newsom appeared in a newspaper article dated July 9, 2010, and the Council’s
opposition to “Sit/Lie” appeared in the ballot handbook sent to voters for the
November 3, 2010 election. The City’s
plan to replace the recycling center with a community garden was thus underway
before the Council criticized then–Mayor Newsom and his policies, and therefore
could not have been based on his desire to retaliate for its criticism.

The
Council disagrees. Despite this
undisputed chronology, it maintains that “there is no evidence of a
pre-existing intention to evict the tenant before the act that gave rise to the
retaliation.” According to the Council,
while the City’s evidence demonstrates a “pre-existing motivation” to evict the Council from the site, there is no
evidence of a “pre-existing intention”
(emphasis added in both quotes) to evict it until after the ballot handbook was
published and the criticism of Newsom appeared in the newspaper. The purported distinction is unpersuasive.

Whether
we call the City’s reasons a “motive” or an “intent,” the consequence is the
same: the City established that it decided to replace the Council’s recycling
operation well before the activity
for which the Council alleges retaliation.
The Council’s theory that the City’s initial valid motives for this
decision were later supplanted or superseded by then–Mayor Newsom’s intent to
punish it for criticizing him and his policies is factually unsupported and
nonsensical. “ ‘An issue of fact
can only be created by a conflict of evidence. It is not created by
“speculation, conjecture, imagination or guess work.” [Citation.]
Further, an issue of fact is not raised by “cryptic, broadly phrased,
and conclusory assertions” [citation], or mere possibilities [citations],’ or
by allegations in the complaint.” (>Lyons v. Security Pacific Nat. Bank
(1995) 40 Cal.App.4th 1001, 1014 (Lyons);
Lewis v. County of Sacramento (2001)
93 Cal.App.4th 107, 116, disapproved on another ground as recognized in Kaufman
& Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133
Cal.App.4th 26, 41–42.) Evidence that
Rec & Park previously considered a different location for a community
garden or that Rec & Park’s general manager told the Council there were no
plans to evict it some two months before
the commission approved the community garden plan for the Council site does not
contradict the evidence that the City was working on and toward that plan long
before the Council criticized the mayor’s policies.

The
Council’s retaliation claim fails for another reason as well: its tenancy was
not terminated by Mayor Newsom. Newsom
left the mayor’s office in January 2010, and the operative eviction notice was
issued by Mayor Lee’s administration after meetings between Mayor Lee and the
Council. Even so, the Council postulates
that the decision was nonetheless Newsom’s because there is “every reason to
assume that the bureaucratic machine just continued with what it was instructed
to do by Mayor Newsom.” This, too, is mere
conjecture — and is contradicted by evidence that Mayor Lee met with the
Council representatives to discuss its occupancy. It is therefore inadequate to defeat summary
adjudication of the Council’s retaliatory eviction defense. (Lyons,
supra, at p. 1014.)

>The Council Produced No
Evidence of Unlawful Discrimination

The Council also contends its eviction constitutes unlawful
discrimination on the basis of status, because it raised a triable issue of
fact that one of the City’s principal motivations was to rid the Golden Gate
Park area of the Center’s homeless clientele.
Here, too, we disagree. Assuming
arguendo that homelessness qualifies as a protected status for purposes of
discrimination analysis, an issue we need not decide (see Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1105 (>Tobe)), the Council adduced no evidence
that the City’s decision to terminate the recycling center, even to the extent
based on its use by homeless persons, was motivated by discriminatory animus
rather than concerns for public
health and safety. (See >ibid.)

The
undisputed evidence showed that the City’s concerns were based on such valid
considerations. The Council itself
relies on the following testimony from Rec & Park’s general manager: “Q.
. . . How does [replacing the recycling center] increase
public safety? [¶] A. We believe that it is a healthier use in the park;
the eastern end of the park has had public health and public safety
challenges. And that by discontinuing
cash redemption in the park, we are probably increasing the health and, overall
health and safety of uses within the park.
[¶] Q. I guess you’re a city official, so you have to be euphemistic,
but are you basically talking about the homeless people and the street people
from Haight Street who come and redeem? [¶] A. I’m not sure I’m prepared
to characterize it one way or the other.
But there are people who actually live in Golden Gate Park, on the
eastern end, that frequently do redeem at the center because it is located in
Golden Gate Park. And we have had, the
City has had a number of concerns for a long period of time about the health
and safety of some of the people that are living in the park. There have been a number of incidents in
which both victims and perpetrators of serious crimes have been people that
have been living in the park and have been people that have, that may be
redeeming on the site.” This testimony
does not support the Council’s claim of status-based discrimination. It undermines it. A 2008 internal memo to then–Mayor Newsom
that inquired whether he wanted to close the recycling center or,
alternatively, prevent homeless customers from using it, adds nothing to the
Council’s discrimination claim. There is
nothing about the context of the memo that indicates it is motivated by
discrimination against the homeless rather than concern over health and safety
issues due to the center’s operation.

Moreover, the City also had reason to
evict the recycling center that had nothing to do with the incentive it
provided for homeless to camp in the park and neighborhood. The recycling center is a non-conforming use
under the 1998 Golden Gate Park Master Plan, and its utility to local residents
has largely been supplanted since the initiation of curbside recycling pickup.href="#_ftn3" name="_ftnref3" title="">[3] It has been the City’s policy for years to
promote health and nutrition by providing residents with community gardens, and
to that end both its general plan and its sustainability plan called for the expansion
of community garden opportunities throughout San Francisco. On the other hand, neighbors had complained
for years that the recycling center encouraged illegal poaching from curbside
recycling bins and trash cans and was a source of noise, truck traffic, and
litter.

The Council therefore failed to show a
triable issue of material fact as to its discrimination defense, and the trial
court properly granted summary adjudication.

>The Court Did Not Abuse Its Discretion in Issuing the Protective
Order

The Council argues the court abused its discretion when it protected
Lieutenant Governor Newsom from deposition.
It asserts Newsom’s testimony was critical because his state of mind and
reasoning were relevant to the Council’s retaliation and discrimination
defenses, and that “[t]he extent to which he was the ultimate decision-maker,
as well as his state of mind, is a legitimate subject of discovery which could
have only been obtained through his testimony.”
The contention is meritless.

“It is the general rule in both
California and federal courts that the heads of agencies and other top
governmental executives are normally name="SDU_1468">not
subject to depositions.
[Citations.] [¶] ‘An
exception to this general rule exists concerning top officials who have direct
personal factual information pertaining to material issues in an action. [Citations.]
[¶] A top governmental official may, however, only be deposed upon a
showing that the information to be gained from such a deposition is not
available through any other source. [Citations.]’ [¶] . . .
[¶] The general rule is based upon the recognition that ‘. . .
an official’s time and the exigencies of his everyday business would be
severely impeded if every plaintiff filing a complaint against an agency head,
in his official capacity, were allowed to take his oral deposition. Such
procedure would be contrary to the public interest, plus the fact that
ordinarily the head of an agency has little or no knowledge of the facts of the
case.’ [Citation.] This proposition is
as true in California courts as in federal courts.” (Nagle
v. Superior Court (1994) 28 Cal.App.4th 1465, 1467–1468, italics
added; State Board of Pharmacy v.
Superior Court (1978) 78 Cal.App.3d 641, 644–645 [“A highly placed public
officer should not be required to give a deposition in his official capacity in
the absence of ‘compelling reasons.’ ”].)

Here, the Council made no showing that
the information it sought to obtain from Lieutenant Governor Newsom could not
have been obtained through other means, such as deposing the most knowledgeable
persons on Newsom’s staff or within Rec & Park or conducting written
discovery of communications between Newsom and City and/or Rec & Park staff
bearing on the decision to terminate the Council’s tenancy. The court’s decision to issue the protective
order was well within its discretion.

>The Council Was Given the Required Notice to Oppose the City’s
Motion

Finally, the Council argues reversal is
necessary because the City served its motion papers only five days before the
hearing. We again disagree. Section 1170.7 of the Code of Civil Procedure
and rule 3.1351 of the California Rules of Court authorize a five-day notice
period for summary judgment motions in wrongful detainer actions.href="#_ftn4" name="_ftnref4" title="">[4] The Council maintains, as it did below, that
this shortened notice provision was inapplicable because the City moved for
summary adjudication, not summary judgment, and no rule or statutory provision
shortens notice for summary adjudication motions. Perhaps, but in this case any error was
harmless because the City waived its claim for monetary damages, the only claim
not addressed by its summary adjudication motion. Accordingly, the subsequent ruling and
judgment disposed of the entire action, just as though the City had initially
styled its motion as one for summary judgment.


The Council asserts, without any factual
or legal support, that it was disadvantaged by the shortened notice because
“[i]n general, motions for summary judgment are easier to defeat and take less
time to oppose [than] motions for summary adjudication.” But there is no reason to believe that >this motion would have been any easier
to defeat had it been filed as a motion for summary judgment, rather than
summary adjudication. In that case, the
City would have pursued all of the arguments it raised in relation to its cause
of action for possession and the Council’s affirmative defenses, but it also
would have sought judgment on its claim for monetary damages (thereby disposing
of the entire action). Doing so would
have created more work for the Council, not less.

“No judgment shall be set aside, or new
trial granted, in any cause, . . . for any error as to any matter of
procedure, unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.”
(Cal. Const. art. VI, § 13.) The
Council was not prejudiced by the shortened notice period, so the procedural
error, if any, does not warrant reversal.


DISPOSITION

The judgment is
affirmed.







_________________________

Siggins,
J.





We concur:





_________________________

McGuiness, P.J.





_________________________

Jenkins, J.