Filed 7/16/21 Pour v. City of Los Angeles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION THREE

LAHER POUR et al.,

Petitioners and Appellants,

v.

CITY OF LOS ANGELES,

Respondent.

B303925

(Los Angeles County

Super. Ct. No. BS174592)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Mitchell L. Beckloff, Judge. Reversed with 

directions.

Noah Grynberg, Tyler Anderson, Gina Hong and Sarah 

Walkowicz, for Petitioners and Appellants Laher Pour, Nelya 

Feygin, Jorge Lopez and Tarzana Gardens Tenants Association.

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, 

Chief Deputy City Attorney, Scott Marcus and Blithe S. Bock, 

Assistant City Attorneys and Shaun Dabby Jacobs, Deputy City 

Attorney, for Respondent.
2

This appeal concerns an apartment building first approved 

for occupancy in 1978 (the property). At all times between 1979 

and 2016, the City of Los Angeles (the City) classified the

property as subject to the Los Angeles Rent Stabilization 

Ordinance (RSO) (L.A. Mun. Code,

1 § 151.00 et seq.), which 

regulates rent increases on residential properties approved for 

occupancy prior to October 1, 1978. In 2017, however, the City 

exempted the property from the RSO after entering into a 

settlement agreement with the property’s owners that designated 

the property “at all times and forever exempt from the RSO.”

Several of the property’s tenants and its tenants’

association sued the City and the owners, seeking, among other 

things, a writ of mandate directing the City to enforce the RSO 

with respect to the property, and a declaration that the 

settlement agreement was void as against public policy. The trial 

court voided the settlement agreement but concluded the tenants

had not established that the property was subject to the RSO, 

and it thus denied the petition for a writ of mandate.

We reverse. Under the plain language of the RSO, a 

property is subject to rent control if, among other things, a 

building permit was issued prior to October 1, 1978. Here, a

building permit for the property was issued in July 1977, well 

prior to the RSO’s effective date. Moreover, applying the RSO to 

the property creates no conflict with state law, as the City 

asserts, because the property was not newly subjected to rent 

control after 1995. Accordingly, we conclude that the property is 

1 All subsequent undesignated statutory references are to 

the Los Angeles Municipal Code.
3

subject to the RSO, and the trial court erred in denying the 

petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants Laher Pour, Nelya Feygin, and Jorge Lopez are 

tenants living in the property, a 38-unit apartment building 

located in Tarzana. Appellant Tarzana Gardens Tenants 

Association is an association of tenants living at the property. 

Jerie Petrosian, as trustee of the Petrosian Trust, and

JKP Apartments are the property’s owners.

2 Respondent City is 

the municipality within which the property is located.

A. Construction and Occupancy of the Property

On July 11, 1977, the City issued a building permit for the 

construction of an apartment building on the property. The 

following month, the City issued a building permit for the 

construction of a swimming pool.

On February 16, 1978, the builder submitted a “request for 

modification of building ordinances” seeking a temporary 

certificate of occupancy pending completion of electrical work on 

the swimming pool. The City granted the request the same day. 

However, the City’s files do not contain a temporary certificate of 

occupancy.

The City issued a final certificate of occupancy for the 

property on October 16, 1978.

2 The owners are defendants in the trial court proceedings, 

but are not parties to this appeal.
4

B. The RSO

1. Pre-2017 Versions

The City adopted the RSO on March 15, 1979. For all 

properties subject to its provisions, the RSO sets out the

maximum rents landlords are permitted to charge tenants. 

The definition of properties subject to the RSO has been 

amended several times. As adopted in 1979, the RSO applied to 

“[a]ll dwelling units, efficiency dwelling units, guest rooms, and 

suites in the City of Los Angeles,” but excepted housing 

accommodations “located in a structure for which a certificate of 

occupancy was first issued after October 1, 1978.” In 2011, the 

City Council added the following sentence to the definition of 

RSO properties, apparently in order to include some older 

properties built before the City routinely issued certificates of 

occupancy: “If the property was occupied for residential purposes 

prior to October 1, 1978 and a Certificate of Occupancy for the 

subject building was never issued or was not issued until after 

October 1, 1978, the housing accommodation shall be subject to 

the provisions of this Chapter if relevant documentation, such as 

a building permit, establishes that the building was first occupied 

for residential purposes prior to October 1, 1978.” (Former 

§ 151.02.)

City representatives asserted in the present proceedings 

that although the initial version of the RSO facially embraced 

only those properties for which a certificate of occupancy had 

issued prior to October 1, 1978, the City has always considered a 

property subject to the RSO if it was “approved for occupancy”

prior to October 1, 1978, whether or not a certificate of occupancy 

had been issued for the property. As the City Attorney told the 

court, it was the City’s view that the RSO had always covered “all 
5

the properties that were either used or capable of being used” 

before October 1, 1978. (Italics added.)

2. 2017 Amendments

The City adopted the current version of the RSO in 2017. 

Currently, section 151.02 of the RSO defines properties subject to 

the RSO as follows: “Housing accommodations, located in a 

structure for which the first Certificate of Occupancy was issued 

after October 1, 1978, are exempt from the provisions of this 

chapter. If the structure was issued a Certificate of Occupancy, 

including a Temporary Certificate of Occupancy, on or before 

October 1, 1978, the housing accommodation(s) shall be subject to 

the provisions of this chapter. If the property was issued a 

building permit for residential purposes at any time on or before 

October 1, 1978, and a Certificate of Occupancy for the building 

was never issued or was not issued until after October 1, 1978, 

the housing accommodation shall be subject to the provisions of 

this chapter.” Thus, under the current version of the RSO, a 

property is subject to rent stabilization if, on or before October 1, 

1978, the City issued either (1) a certificate of occupancy, 

(2) a temporary certificate of occupancy, or (3) a building permit.

The 2017 amendments were adopted at the 

recommendation of the Housing and Community Investment 

Department (HCID), to “provide clarity for both tenants and 

landlords on the administration of the City’s rent stabilization 

and housing code enforcement programs.” They were “technical 

amendments”—i.e., amendments intended to “improve the 

language in the ordinance to make it more clear or easier to 

administer,” not to “change the substance of any provision in the 

ordinance.” As relevant here, HCID noted that many owners had 

taken the position that a property was not subject to the RSO if a 
6

temporary certificate of occupancy for a property was first issued 

prior to October 1, 1978, but a final certificate of occupancy did 

not issue until after that date. HCID disagreed, explaining that 

“[f]or purposes of determining whether a rental unit is subject to 

the RSO, Temporary Certificates of Occupancy are a subcategory 

within the broader definition of Certificates of Occupancy, which 

allow the legal habitation of a building and permit the occupancy 

of the units. . . . [¶] . . . [¶] The [HCID], therefore, recommends 

amending the sixth exemption in the definition of ‘Rental Unit’ in 

Section 151.02 of the RSO to affirm that a Temporary Certificate 

of Occupancy, when issued, is the first Certificate of Occupancy.” 

(Italics added.)3

HCID also recommended amending the definition of “rental 

unit” to include units for which a building permit was issued 

prior to October 1, 1978, but a certificate of occupancy had never 

been issued or was issued after the relevant date. HCID 

explained: “The current language in 151.02 (exemption number 

6) in the definition of ‘rental unit’ references ‘the housing 

accommodation shall be subject to provisions of this Chapter if 

relevant documentation, such as a building permit, establishes 

that the building was first occupied for residential purposes . . . .’ 

However, Certificates of Occupancy do not establish when a 

rental unit is occupied, but when a housing accommodation is 

approved for residential occupancy. The application of the RSO 

is not based on the ‘physical occupancy’ of a structure but on 

when a building may be legally occupied for residential purposes. 

3 Consistent with HCID, in this opinion we will use the term 

“certificate of occupancy” as an umbrella term to refer to both 

temporary and final certificates of occupancy.
7

[¶] [HCID], therefore, recommends a further amendment 

rephrasing the second part of the sixth exemption in the 

definition of ‘Rental Unit.’ ”

C. The Owners’ Request for Reclassification of the 

Property

It is undisputed that the property’s original owners 

registered the property with the City in 1979, and that the City 

has classified the property as subject to the RSO since the 

ordinance’s inception. Thus, when JKP Apartments and the 

Petrosian Trust (collectively, the owners) purchased the property 

in 1994, they did so subject to the RSO. They have annually paid 

RSO fees since that time.

In May 2016, the owners submitted a request to HCID to

make a finding that the property was not subject to the RSO

because the property’s first certificate of occupancy “dates 

October 16, 1978.” On May 23, 2016, HCID responded that 

having conducted a review of its property records, it concurred 

with the owners that the property was not subject to the RSO, 

and thus the City’s records “[would] be adjusted to reflect this 

RSO exemption for 38 units.” In June 2016, the owners informed

their tenants of the City’s determination and that rents would be 

increased as of September 2016.

On July 1, 2016, after receiving complaints from some of 

the property’s tenants, HCID advised the owners that on further 

review, it had determined the property was subject to the RSO. 

It said: “Property records indicate that a Temporary Certificate of 

Occupancy 1977VN60384 was issued February 16, 1978. 

Therefore, all of the dwelling units on this property are subject to 

the provisions of the RSO. Please note that it is the first issued 

Certificate of Occupancy for a structure issued by the City of 
8

Los Angeles which is relevant to the determination of whether or 

not a rental unit is subject to the RSO.” (Italics added.)

D. The Settlement Agreement 

The owners submitted a claim for damages to the City in 

April 2017. They asserted that the document identified by the 

City as a temporary certificate of occupancy was not, in fact, a 

temporary certificate of occupancy, but was instead a “ ‘request 

for modification of building ordinance.’ ” The owners sought 

damages in excess of $25,000 and a determination that the 

property was not subject to the RSO.

On July 31, 2017, the City and the owners entered into an 

agreement settling the owners’ claims (the settlement 

agreement). In it, the City “contend[ed] [the] evidence supports 

the contention that the Subject Property was issued a Temporary 

Certificate of Occupancy on February 16, 1978 and that, 

accordingly, the Subject Property is subject to the RSO.” 

Nonetheless, the owners and the City “now mutually desire to 

compromise and settle all of their respective claims and 

contentions relating to their rights and obligations as raised in 

the Claim.” Accordingly, the parties agreed that the City “shall 

vacate its prior determination as to the RSO status of the Subject 

Property,” and “the Subject Property shall be at all times and 

forever exempt from the RSO.” In exchange, the owners agreed 

to waive “any and all claims against the City with respect to the 

City’s determination as to the RSO status of the Subject 

Property.”

Following execution of the settlement agreement, the 

owners raised appellant Pour’s monthly rent from $592 to $838, 

appellant Feygin’s monthly rent from $1,184 to $1,434, and 

appellant Lopez’s monthly rent from $1,060 to $1,310.
9

E. The Tenants’ Petition for Writ of Mandate

On August 1, 2018, the individual appellants and the 

tenants’ association (collectively, the tenants) filed a verified 

petition for writ of mandate and complaint for declaratory and 

injunctive relief and damages against the City and the owners. 

The petition alleged that the property was subject to the RSO 

because both a temporary certificate of occupancy and a building 

permit were issued prior to October 1, 1978. As against the City, 

therefore, the petition sought a writ of mandate and declaratory 

relief invalidating the settlement agreement and designating the 

property subject to the RSO.

4

In their opening brief in support of the petition, the tenants 

asserted that under the operative version of the RSO, a property 

is subject to rent stabilization if the City issued a permanent 

certificate of occupancy, a temporary certificate of occupancy, or a 

building permit on or before October 1, 1978. In the present case, 

it was undisputed that the City issued a building permit for the 

property in July 1977, and thus the property was subject to the 

RSO pursuant to the ordinance’s building-permit clause. 

Alternatively, the tenants urged that the property was subject to 

the RSO under the temporary-certificate-of-occupancy clause, 

because although no temporary certificate of occupancy appeared 

in the City’s file, the grant of a request for a temporary certificate 

of occupancy on February 16, 1978 was evidence that a 

temporary certificate of occupancy had, in fact, been issued. The

4 As against the owners, the tenants asserted causes of 

action for declaratory relief, intentional and negligent infliction of 

emotional distress, negligence, and unfair business practices. 

Those causes of actions are not at issue in this appeal.
10

tenants contended: “The City has testified that in 1978, upon 

receipt of the Request [for a temporary certificate of occupancy], 

an inspector would have to verify that the building in question 

satisfied certain life and safety regulations. There is no 

reasonable explanation regarding why the City would have 

checked ‘Granted’ on the Request rather than ‘Denied’ if an 

inspector had not already performed the required verification. . . . 

[¶] Indeed, even assuming arguendo that a separate temporary 

[certificate of occupancy] was never issued for the Property, the 

fact that the Request was granted should be sufficient to 

establish that the Property is covered by [the RSO]. . . . There is 

no way to read the ‘grant’ of a ‘request’ other than as a statement 

that the relief sought in the request was granted to the 

applicant.”

In opposition to the writ petition, the City urged, first, that 

if the 2017 amendment were read to subject to the RSO any 

property for which a building permit had been issued prior to 

October 1, 1978, the amendment would conflict with the CostaHawkins Rental Housing Act (Costa-Hawkins), Civil Code section 

1954.50 et seq. Among other things, Costa-Hawkins prohibits

local jurisdictions from subjecting to rent control properties 

already exempt from rent control as of February 1, 1995. The 

City asserted that because, as of Costa-Hawkins’s effective date,

the RSO applied only to properties that were legally occupied for 

residential purposes prior to October 1, 1978, the City could not 

extend the RSO to any additional properties, including properties 

for which a building permit had been issued, but were not legally

occupied before October 1, 1978. The City thus urged the court to 

read the 2017 amendment narrowly to avoid a conflict with 

Costa-Hawkins.
11

The City also argued that there was no evidence a 

temporary certificate of occupancy had been issued for the 

property prior to October 1, 1978. It asserted: “The Request for 

Modification of Building Ordinances does not constitute issuance 

of the actual certificate—an official act that is performed by DBS 

[Department of Building and Safety]. [Citations.] Only the 

official certificate issued by DBS provides a property owner the 

legal right to occupy its building. The Request For Modification 

of Building Ordinances does not confer any such right to a 

property owner.”5

In their reply brief, the tenants disagreed that properties 

were subject to the RSO only if they were “actually occupied” 

prior to October 1, 1978, but they nonetheless offered evidence 

that the property had been occupied prior to the relevant date.

On July 19, 2019, the owners filed a sur-reply and request 

to strike the tenants’ evidence of actual occupancy. The owners 

asserted that the tenants should not be permitted to introduce 

new evidence in their reply brief, and the trial court should not 

consider evidence not previously presented to HCID. The owners 

thus asked the court to strike the tenants’ new evidence and deny 

the writ petition.

The trial court held a hearing on the writ petition on 

July 24, 2019. The owners’ counsel argued at the hearing that, 

both before and after the 2017 amendments to the RSO, a 

property was subject to the RSO only if it was “fit for occupancy” 

prior to October 1, 1978. The City’s attorney similarly contended, 

5 The owners made similar arguments in opposition to the 

tenants’ writ petition. However, because the City is the only 

respondent, our focus in this opinion is on the City’s contentions.
12

asserting that the RSO embraced only properties that were 

“either used or capable of being used” prior to October 1, 1978. 

Counsel thus urged that expanding the RSO to also cover 

properties for which a building permit had been issued prior to 

October 1, 1978 violated Costa-Hawkins.

The court noted that the City had considered the property 

subject to the RSO until 2016, and inquired how, on that record, 

continuing to apply the RSO to the property could violate CostaHawkins. This colloquy followed:

“[Court:] What I want to ask, [City Attorney] Moore, is: in 

order to have determined that the property was subject to the 

RSO up until 2016, the City would have been operating under the 

old law . . . . [¶] The City had to have made that determination 

to subject that building to the RSO prior to 2016 when it changed 

its position. Would you agree with that? [¶] . . . [¶]

“Mr. Moore: Not to muddy up the waters even more, . . . 

but the property was initially determined to be subject to the 

RSO at the outset. So when the ordinance was passed, it’s been

under the RSO that entire time . . . . At that time, the only 

language was part 1, whether a C of O was issued before or after 

October 1, ’78, essentially. [¶] We don’t know—I can represent 

nobody at the Department has records of a determination being 

made. There is—at that time, though, it is known that owners 

were asked to register properties. [¶] . . . [The owners] would 

have been receiving annual invoices for the RSO and would have 

been subject to the RSO. Once it was in, it was always in.

“The Court: Did it become in with somebody registering 

the property?

“Mr. Moore: We can’t say for certain, but that it—at the 

time the ordinance was passed, that was how properties basically 
13

came under the auspices and the monitoring was they were 

registered at that time. [¶] Again, we don’t—we’re kind of 

guessing here, but I can say that the determination was from the 

outset and it does precede [the 2017 amendments].”

F. August 15, 2019 Remand Order

On August 15, 2019, the trial court issued an order making 

findings and remanding the matter to HCID. With regard to the 

application of the RSO, the court found as follows:

Temporary certificate of occupancy (“category two”): The 

court found that although the City granted the builder’s request 

for a temporary certificate of occupancy, there was no evidence 

the City ever actually issued a temporary certificate of occupancy. 

The court explained that in 1978, the procedure for obtaining a 

temporary certificate of occupancy required a property owner to 

submit a request for modification, after which a City inspector 

would indicate whether the property satisfied life and safety 

requirements. If those requirements were met, the Department 

of Building and Safety would issue a temporary certificate of 

occupancy. In the present case, “The [request for a temporary 

certificate of occupancy] appears to have been submitted by the 

Property’s owner on February 16, 1978, the same day the City 

granted the Request. It is not clear from the deposition 

testimony whether a temporary Certificate of Occupancy 

necessarily follows—as a clerical function—where the City has 

granted a Request. If, as the deposition testimony seems to 

suggest, some inspection by the City must follow where a Request 

is granted, the court has no evidence such an inspection occurred 

or the results of such an inspection, even assuming one did 

occur.” Thus, the court said, “Petitioner has not persuaded the 
14

court that the evidence suggests the Property is subject to the 

RSO as a Category Two property.”

Building permit (“category three”): The court found the 

undisputed evidence established that a building permit for the 

property was issued on July 11, 1977, and thus the property came 

within the plain language of the building-permit clause of the 

RSO. The court agreed with the City, however, that as broadly 

read, that clause conflicted with Costa-Hawkins. Accordingly, 

the court found, “section 151.02 contains a latent ambiguity. The 

language in the provision for Category Three buildings requires a 

determination that the property was, in fact, occupied prior to 

October 1, 1978 without regard to the Certificate of Occupancy. 

Reading the provision in such a fashion is consistent with 

legislative intent and harmonized the RSO with state law.” 

(Italics added.)

With regard to actual occupancy, the court noted that the 

tenants had presented evidence that the property had been 

occupied prior to October 1, 1978. However, the tenants had 

never had the opportunity to present that evidence to HCID, and 

HCID had never considered it. The court therefore remanded the 

matter to HCID to “consider whether the Property falls within 

the RSO based on [the tenants’] evidence as well as any other 

relevant evidence HCID may elect to receive. . . . Upon 

completion of HCID’s review, the matter shall return to this court 

for further proceedings on this petition.”

G. HCID’s Determination Following Remand

On November 15, 2019, HCID issued a finding that, having 

conducted a further review of evidence submitted by the tenants 
15

and the owners,

6

its conclusion “continues to be that this property 

is not subject to the RSO. Although a large number of documents 

have been submitted by the Los Angeles Center for Community 

Law and Action, they essentially do not demonstrate that the 

units at the property were first approved, authorized, or used for 

occupancy on or before October 1, 1978.”

H. Further Proceedings; Court’s Order Denying 

Writ Relief and Granting Declaratory Relief

The court held further hearings on November 20 and 

December 4, 2019, during which it asked the parties what they 

believed the next steps should be. The City contended that it had 

complied with the court’s August 15 order and had found the 

property not subject to the RSO. Thus, it urged, “there is nothing 

left but for the Court to rule that the settlement agreement 

entered into by and between the City and the Owner Defendants 

is not void and unenforceable, and that Petitioners’ Writ is 

therefore denied. Importantly, should Petitioners wish to 

challenge the sufficiency of the City’s determination of 

November 15, 2019, such would have to occur in a new, separate 

action as Petitioners would be required to allege [their] 

arguments in a new Petition, which Petition the City would be 

given the opportunity to respond to in due course.”

6 The evidence presented to HCID is not part of our appellate 

record. HCID purported to summarize the evidence in its 

November 15, 2019 letter, which is in our record, but because the 

evidence itself is not before us, we cannot determine whether 

HCID’s summary is consistent with the evidence. We also have 

no information about the extent of the investigation conducted by 

the landlord’s investigator, or whether the tenants had the 

opportunity to respond to the investigator’s findings.
16

The tenants disagreed with the City’s position and urged 

the court to hold a further hearing to review HCID’s 

November 15 decision. They contended: “There is no basis in law 

for this Court to permit the City to make a finding regarding the 

[RSO] status of the Property in order to adjudicate the petition. 

The City does not have an administrative process for such a 

determination, and there is nothing in any law or regulation that 

states that the City is the entity that must make the 

determination in the first instance. This Court should be the 

arbiter regarding the [RSO] status of the property, and regarding 

whether the settlement agreement is void on its face. If this 

Court believes that Petitioner must somehow show that human 

beings lived at the property prior to October 1, 1978, in spite of 

the plain language of the [RSO], then Petitioners should have the 

opportunity to provide this Court with such evidence with more 

lead time than the few weeks Petitioners had between the date 

the City took its position in its opposition brief and the date on 

which the Petitioners’ reply brief was due. Petitioners and their 

counsel have found and spoken with people over the last few 

months that they identified to the City as having lived at the 

Property prior to October 1978, and who have confirmed to 

Petitioners that they indeed lived at the Property prior to 

October 1978. Petitioners should not be forced to file a new [Code 

of Civil Procedure section] 1085 petition and wait months or 

years to present this evidence to this Court in a separate 

petition.”

After taking the matter under submission, the trial court 

issued an order denying writ relief and granting declaratory 

relief on December 27, 2019. The December 27 order repeated

several of the court’s earlier findings—namely, that the issuance 
17

of a building permit, alone, did not subject a building to the RSO, 

and the tenants had not established that the City issued a 

temporary certificate of occupancy in February 1978. With 

regard to actual occupancy, the court did not directly address the 

City’s findings on remand, other than to conclude that 

“Petitioner[s] can receive no relief on [their] writ petition with 

respect to the City’s determination that the building is not 

subject to the RSO.”

The court reached a different result, however, with regard 

to the settlement agreement. The court rejected the City’s 

contention that the settlement agreement could be void only if 

the property was subject to the RSO, explaining as follows: “The 

terms of the Settlement Agreement reflect the City’s position, at 

the time of contracting, the Property was subject to the RSO—the 

plain language of the settlement agreement reveals the City’s 

belief. Despite the City’s understanding and position about the 

Property and the RSO, the City nonetheless agreed with [the 

owners] that the Property could be for now and ‘at all times and 

forever exempt from the RSO.’ This the City could not do as a 

matter of law . . . . [¶] . . . [¶] The RSO establishes what 

properties fall within its protection. The City and [owners’]

attempt to exempt the Property from the applicability of the RSO 

by way of contract after the City determined the Property was 

subject to the RSO was an invalid, ultra vires act. . . . [¶] . . . [¶] 

Based on the foregoing, the court finds the Settlement Agreement 

between the City and [the owners] void.”

The tenants timely appealed from the December 27, 2019 

order.7

7 An order denying a petition for writ of mandate is 

appealable. (Martis Camp Community Association v. County of 
18

DISCUSSION

On appeal, the tenants contend that the property is subject 

to the RSO because (1) the City issued a temporary certificate of 

occupancy for the property prior to October 1, 1978, and (2) the 

City issued a building permit for the property prior to October 1, 

1978. They therefore urge that the writ petition should have 

been granted. Alternatively, the tenants contend the trial court

erred in remanding the matter to the City for a determination of 

actual occupancy and then adopting the City’s determination 

without inquiry.

The City contends the trial court properly concluded the 

property was not subject to the RSO because (1) although the 

City granted a request for a temporary certificate of occupancy, 

there is no evidence it ever issued a temporary certificate of 

occupancy, (2) the mere issuance of a building permit does not 

subject a property to the RSO without evidence of actual 

occupancy, and (3) HCID’s finding that the property was not 

actually occupied prior to October 1, 1978 was not arbitrary or 

capricious.

As we discuss, under the plain language of the RSO, a 

building is subject to rent control if a building permit was issued 

prior to October 1, 1978. This provision does not conflict with 

Costa-Hawkins as applied to the property at issue in this case, 

and thus the City abused its discretion by declaring the property 

not subject to the RSO. 

Placer (2020) 53 Cal.App.5th 569, 588, fn. 11; Public Defenders’ 

Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 

1409 [“an order granting or denying a petition for an 

extraordinary writ constitutes a final judgment for purposes of an 

appeal”].)
19

I.

Legal Principles and Standard of Review

The tenants filed a petition for writ of ordinary (or 

“traditional”) mandamus pursuant to Code of Civil Procedure 

section 1085. That section provides that a writ of mandate may 

be issued “by any court to any inferior tribunal, corporation, 

board, or person, to compel the performance of an act which the 

law specially enjoins, as a duty resulting from an office, trust, or 

station, or to compel the admission of a party to the use and 

enjoyment of a right or office to which the party is entitled, and 

from which the party is unlawfully precluded by that inferior 

tribunal, corporation, board, or person.”

8

“ ‘In determining whether to grant a petition for traditional 

mandamus, we review for an abuse of discretion. “ ‘ “Abuse of 

discretion is established if the respondent [agency] has not 

proceeded in the manner required by law, the order or decision is 

not supported by the findings, or the findings are not supported 

by the evidence.” [Citations.]’ [Citation.]” ’ [Citation.] ‘ “In 

determining whether the agency complied with the required 

procedures and whether the agency’s findings are supported by 

8 The parties agree that the proceeding before the trial court 

concerned traditional mandamus pursuant to Code of Civil 

Procedure section 1085 because although HCID’s determination 

that the property was not subject to the RSO was adjudicatory, 

HCID was not required to hold an evidentiary hearing. (See, e.g., 

Shelden v. Marin County Employees’ Retirement Assn. (2010) 

189 Cal.App.4th 458, 462−463 [administrative mandamus 

pursuant to Code of Civil Procedure section 1094.5 is appropriate 

to review only an administrative decision that is made “as the 

result of a proceeding in which by law a hearing is required to be 

given. . . .”].)
20

substantial evidence, the trial court and the appellate courts 

essentially perform identical roles. We review the record de novo 

and are not bound by the trial court’s conclusions.” ’ ” (Mateel 

Environmental Justice Foundation v. Office of Environmental 

Health Hazard Assessment (2018) 24 Cal.App.5th 220, 229

(Mateel); see also Exxon Mobil Corp. v. Office of Environmental 

Health Hazard Assessment (2009) 169 Cal.App.4th 1264, 1276

[same].) We also review de novo the trial court’s legal 

conclusions, including its interpretations of statutes. (Oakland 

Police Officers’ Assn. v. City of Oakland (2021) 63 Cal.App.5th 

503, 512; Daugherty v. City and County of San Francisco (2018) 

24 Cal.App.5th 928, 944.)

II.

The City Erred in Finding the Property 

Is Not Subject to the RSO

As we have said, under the current version of the RSO, a 

property is subject to rent control if it “was issued a building 

permit for residential purposes at any time on or before October 

1, 1978.” (§ 151.02.) There is no dispute that a building permit 

was issued for the property on July 11, 1977, and thus the 

property comes within the plain language of the RSO.

Although the City concedes the property is within the 

RSO’s plain language, it contends that if the RSO is read as 

broadly as its plain language suggests, it conflicts with state 

law—specifically, with Costa-Hawkins, Civil Code 

section 1954.50 et seq. The City asserts that prior to the 2017 

amendments to the RSO, a property was subject to the RSO only 

if, before October 1, 1978, a certificate of occupancy had been 

issued for the property or the property was actually occupied. 

Thus, the City says, because Costa-Hawkins prevented local 
21

public entities from expanding rent control after February 1, 

1995, allowing a building permit alone to result in RSO inclusion 

would conflict with Costa-Hawkins because it would “improperly 

subject currently exempted properties to the restrictions of the 

RSO.” For the reasons that follow, we do not agree.

Costa-Hawkins provides, among other things, that an 

owner of residential real property may establish rental rates for a 

dwelling free of rent control if “[i]t has a certificate of occupancy 

issued after February 1, 1995” or “[i]t has already been exempt 

from the residential rent control ordinance of a public entity on or 

before February 1, 1995, pursuant to a local exemption for newly 

constructed units.” (Civ. Code, § 1954.52.) In other words, CostaHawkins exempts from rent control properties newly built after 

its effective date of February 1, 1995, as well as properties 

already exempted from rent control pursuant to local ordinance.

As we explained in Apartment Assn. of Los Angeles County,

Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 13, “[t]he 

legislative history of Costa-Hawkins indicates that the 

Legislature did not intend for Costa-Hawkins to affect the rights 

of tenants who were already living in residential units subject to 

rent control. (See Reynolds & Conner, Enrolled Bill Rep. on 

Assem. Bill No. 1164 (1995–1996 Reg. Sess.) July 27, 1995, p. 5 

[‘The intent of the sponsor is to permit the operation of rent 

controls that affect an existing tenant but to limit the ability of 

localities to control rent setting when rental housing is vacated.’]; 

Assemblymember Hawkins, Floor Statement, Assem. Bill 

No. 1164 (1995–1996 Reg. Sess.) July 24, 1995, p. 3 [CostaHawkins ‘still allows local governments to continue to protect 

current tenants from rent increases’].)” (Id. at p. 25, fn. 9, italics 

added.) Rather, Costa-Hawkins was intended to encourage new 
22

construction to increase the residential housing supply. (Burien, 

LLC v. Wiley (2014) 230 Cal.App.4th 1039, 1047, italics added.) 

In short, Costa-Hawkins was intended to protect tenants 

currently living in rent-controlled properties from large rent 

increases, while ensuring that owners and builders of new 

properties were able to set rents at market rate to ensure the 

continued supply of new housing stock.

We perceive no conflict between the RSO and CostaHawkins as applied to the facts of this case. At issue here is a 

40-year-old building in which tenants have been protected by 

rent control essentially since the building was first occupied in 

the late 1970’s. Manifestly, the City did not newly designate the 

property as rent-controlled as a result of the 2017 amendments to 

the RSO—the property has always been treated as such. Indeed, 

the City conceded at the July 2019 hearing that “the property 

was initially determined to be subject to the RSO at the outset” 

and was treated as a rent-controlled property “that entire time.” 

As a result, at all times between 1979 and July 2017, the City 

issued annual invoices for RSO fees, the owners paid RSO fees, 

and long-term tenants paid stabilized rents. The property 

therefore was not “already . . . exempt from the residential rent 

control ordinance of a public entity on or before February 1, 1995, 

pursuant to a local exemption for newly constructed units”

(Civ. Code, § 1954.52)—to the contrary, the property had been 

determined to be subject to such an ordinance. Applying the RSO 

to this property, therefore, does not conflict with Costa-Hawkins.

Although the City acknowledges that the property had an 

RSO designation between 1979 and 1995, it urges that 

designation was in error, and thus that a current RSO 

designation creates a conflict with Costa-Hawkins. Not so. As 
23

we have said, it has been the City’s position that, under every 

version of the RSO, a property was subject to the RSO if it was 

“actual[ly] use[d]” or “fit for use” prior to October 1, 1978—that 

is, if prior to the relevant date, a temporary or final certificate of 

occupancy had been issued for the property or the property was 

actually occupied. Applying this definition to the present case, 

the City has suggested the property was improperly designated 

as subject to the RSO because the Department of Building and 

Safety presently is unable, more than 40 years after the fact, to 

determine when the property first received a certificate of 

occupancy or was actually occupied. In other words, the City’s 

position is that in the absence of current conclusive evidence that 

a temporary certificate of occupancy was issued or the property 

was occupied prior to October 1, 1978, we should ignore 40 years 

of precedent and presume the property had not been issued a 

temporary certificate of occupancy and was not actually occupied. 

The City’s position runs counter to Evidence Code 

section 664 which creates a rebuttable presumption that an 

official duty has been regularly performed. (See Evid. Code, 

§ 664 [“It is presumed that official duty has been regularly 

performed”]; American Chemistry Council v. Office of 

Environmental Health Hazard Assessment (2020) 55 Cal.App.5th 

1113, 1146 [“in the absence of evidence to the contrary, we 

presume regular performance of an official duty”]; Thimon v. City 

of Newark (2020) 44 Cal.App.5th 745, 760 [same].) As applied to 

the present case, Evidence Code section 664 requires us to 

presume, in the absence of contrary evidence, that the City 

properly performed its duty to determine that the property was 

subject to the RSO before designating it as such. The City has 

conceded that there is no such contrary evidence—that “nobody 
24

at the Department has records” of the circumstances under which 

an RSO designation was made with respect to this property. On 

the present record, therefore, we must presume that in 1979—

well prior to the passage of Costa-Hawkins—the property was

properly determined to be subject to the RSO.

9

This presumption is particularly appropriate in this case, 

because although there apparently is no one currently employed 

by the City who recalls when a certificate of occupancy was first 

issued and the property was first occupied, that would not have 

been the case when the City initially designated the property 

subject to rent control in 1979. Then, both the City and the 

original owner would have been aware of the relevant permitting 

and occupancy history—and the owner certainly would have 

objected to the property’s designation as an RSO property if, as 

the City now suggests, a temporary certificate of occupancy had 

not issued or the property had not been occupied prior to October 

1, 1978. The original owner manifestly did not do so—to the 

contrary, he or she registered the property with the City and 

annually paid RSO fees. On the present record, therefore, we will 

presume the City properly designated the property as an RSO 

9 We note that the electronic database to which the dissent 

refers, which apparently documents building permits dating back 

to 1926, could not have been contemporaneously maintained, but 

necessarily was created much later, when computers and the 

internet were widely available. Although we have no information 

about when this electronic database was created, it presumably 

was well after the 1970’s. The absence of the reference to a 

temporary certificate of occupancy in the electronic database, 

therefore, tells us only that there was no temporary certificate of 

occupancy in the file at the time the file was scanned—not that 

such a document never existed.
25

property prior to Costa-Hawkin’s passage in 1995, and thus that 

continuing to so designate it does not run afoul of CostaHawkins. (See also Nortel Networks Inc. v. Board of Equalization

(2011) 191 Cal.App.4th 1259, 1277 [“The burden of 

demonstrating the invalidity of a regulation falls upon the party 

challenging it”].)

 The City and the dissent contend that if the RSO is read as 

broadly as its plain language suggests—that is, if a rental 

property is subject to the RSO merely because a building permit 

was issued prior to October 1, 1978—then some properties not 

subject to rent control in 1995 will be subject to it today. Because 

this issue is not before us, we decline to consider it. It may be, as 

the City and the dissent suggest, that as applied to other 

properties, a broad reading of the 2017 amendment to the RSO 

conflicts with Costa-Hawkins. Because there is no conflict 

between the ordinance and the statute in this context of this case,

however, the case is not a proper vehicle for resolving this issue. 

(See People v. Murphy (2001) 25 Cal.4th 136, 149 [defendant 

“who falls ‘squarely within’ ” the reach of a statute may not 

challenge its vagueness “as it ‘might be hypothetically applied to 

the conduct of others. . . .’ ”]; Tobe v. City of Santa Ana (1995) 

9 Cal.4th 1069, 1095 [“ ‘The rule is well established . . . that one 

will not be heard to attack a statute on grounds that are not 

shown to be applicable to himself and that a court will not 

consider every conceivable situation which might arise under the 

language of the statute and will not consider the question of 

constitutionality with reference to hypothetical situations’ ”]; 

Rental Housing Owners Assn. of Southern Alameda County, Inc. 

v. City of Hayward (2011) 200 Cal.App.4th 81, 90 [“ ‘ “ ‘petitioners 

cannot prevail by suggesting that in some future hypothetical 
26

situation constitutional problems may possibly arise as to the 

particular application of the statute’ ” ’ ”].)

For all the foregoing reasons, applying the RSO to this 

property does not run afoul of Costa-Hawkins. Accordingly, 

because the property is subject to the RSO under the ordinance’s

plain language as currently drafted, the trial court erred as a 

matter of law by denying the writ petition.10

10 Having so concluded, we need not consider whether the 

City issued a temporary certificate of occupancy for the property 

in February 1978, or whether the trial court erred by failing to 

review the City’s determination that the property was not 

actually occupied prior to October 1, 1978.
27

DISPOSITION

The order denying the petition for writ of mandate is 

reversed with directions to the trial court to enter a new and 

different order granting the petition and directing the City to 

enforce the RSO with respect to the property. The appellants are 

awarded their appellate costs.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

I concur:

KALRA, J.*

*

 Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
Egerton, J., Dissenting.

I respectfully dissent.

I see nothing in the statutory language of the CostaHawkins Rental Housing Act1

to support the notion that, 

if a property in fact was not subject to the RSO when the Act 

was passed, it can nevertheless be deemed subject to the RSO 

if the City and/or the owner mistakenly and erroneously believed 

it to be subject to the RSO at the time. Nor am I aware of any 

case that so holds.

Appellants haven’t even made this argument. Instead, 

appellants’ argument consists of two different assertions: 

(1) The property falls within the language of the RSO, as 

amended in 2017, because a building permit was issued on 

July 11, 1977; and (2) the 2017 amendment to the RSO did 

not “expand[ ] the universe of units covered by [the RSO]” so 

there’s no Costa-Hawkins Act problem. These two assertions 

are plainly inconsistent.

It is undisputed that a building permit issued for the 

property in July 1977. As the City points out, if the mere 

issuance of a building permit subjects a property to the RSO—

a property on which construction has not even begun—then 

the amendment would “capture many properties” that had 

not been subject to the RSO under its pre-2017 terms. This 

is obvious and indisputable: so read, the RSO would expand 

its sweep to cover not only buildings for which a certificate of 

1 Civ. Code, § 1954.50 et seq. (the Costa-Hawkins Act or 

the Act). The Costa-Hawkins Act was enacted in August 1995. 

(Palmer/Sixth Street Properties, L.P. v. City of Los Angeles 

(2009) 175 Cal.App.4th 1396, 1405.)
2

occupancy or temporary certificate of occupancy issued before 

October 1, 1978, but also buildings that were not occupied or 

approved for occupancy before October 1, 1978 because the 

ground had yet to be broken.2

Quoting selectively, appellants mischaracterize the 

relevant deposition testimony. The City Council amended 

the RSO in 2011 and again in 2017 to add language about 

building permits. In 2011 the City added a phrase that 

a “housing accommodation” would be subject to the RSO “if 

relevant documentation, such as a building permit, establishes 

that the building was first occupied for residential purposes 

prior to October 1, 1978.” In 2017 the City Council deleted this 

language and added this sentence: “If the property was issued a 

building permit for residential purposes at any time on or before 

October 1, 1978, and a Certificate of Occupancy for the building 

was never issued or was not issued until after October 1, 1978, 

the housing accommodation shall be subject to the provisions 

of this chapter.”

Anna Ortega, the Director of Rent Stabilization at the 

City’s Housing and Community Investment Department (HCID), 

testified about these amendments. In response to appellants’ 

counsel’s questions, she explained the exemption from the RSO 

(now contained in paragraph 6 of the definition of “Rental Units” 

in section 151.02 of the ordinance) was meant to be for new 

construction. Some buildings had existed long before October 1, 

1978—the property at issue here of course was not one of them—

but had no certificate of occupancy. The City Council didn’t 

2 The issuance of a building permit means “[t]he applicant 

can start construction.”
3

mean to exempt those older buildings. So HCID recommended 

the amendments “to talk about if relevant documentation, 

such as a building permit, establishes that it was first occupied 

for residential purposes.” Ortega continued, “We were really 

concerned with old housing from the ‘20s or even before the ‘50s 

and for whatever reason it didn’t get a certificate of occupancy 

but were clearly old housing in existence on October 1st, 1978, 

and used for residential purposes.”

Ortega testified a building permit, by itself, wouldn’t 

establish the building was “first occupied for residential 

purposes” before October 1, 1978, but “a series of permits from 

decades past” would tend to show the building wasn’t new 

construction. Ortega listed documents other than a certificate 

of occupancy that could be used to establish the date of first 

occupancy: phone records, Department of Water and Power 

records, advertisements, and “other kinds of records from 

[the Department of] Building and Safety other than a permit.” 

By contrast, Ortega testified, a Request for Modification of 

Building Ordinance like the one at issue here—even if granted—

is insufficient to establish “the first date” for “legal habitation.” 

According to Ortega, it “doesn’t prove anything”—“[o]nly that 

a request was filed.”

Ortega explained it was not the City Council’s intent 

to expand the universe of properties subject to the RSO; HCID 

and the Council didn’t mean to “chang[e] anything” as far as 

the number of units subject to it. But, Ortega acknowledged, 

the broad “building permit” language in the 2017 amendment 

“overreached.” The amendment “was meant to address . . . 

old housing that had been occupied and rented”—again, 

the property here wasn’t that—“not housing on the cusp.”
4

As the majority notes, our review is de novo and we are 

not bound by the trial court’s conclusions. However, applying 

this de novo standard, I find Judge Beckloff’s analysis, reasoning, 

and conclusions sound. If the issuance of a building permit alone 

subjects a property to the RSO, then the 2017 amendment sweeps 

within its scope properties that otherwise wouldn’t be subject to 

the ordinance, and it potentially runs afoul of the Costa-Hawkins 

Act.3 To read the amendment’s language more narrowly to save 

it from preemption, a court must interpret it to mean a building 

permit is not enough when there’s no evidence the property was 

approved for occupancy or actually occupied before October 1, 

1978. As Judge Beckloff found, the record here does not establish 

the property was approved for occupancy or occupied before the 

critical October 1 date.

Appellants rely on a form Request for Modification of 

Building Ordinances for the property, dated February 16, 1978. 

Under “Request” is typed “Temporary Certificate of Occupancy.” 

Under “Justification” is typed “Pending completion of elect. work 

3 Apartment Assn. of Los Angeles County, Inc. v. City of 

Los Angeles (2009) 173 Cal.App.4th 13, cited by the majority, 

involved a conflict between two statutes: the Costa-Hawkins Act 

and the Ellis Act, Government Code section 7060 et seq. 

(Apartment Assn., at p. 18.) As Justice Kitching noted, the CostaHawkins Act was enacted after the Ellis Act. The Ellis Act 

specifically authorized the City to enact the ordinance at issue in 

Apartment Assn. (Ibid.) That ordinance provided, if a landlord 

demolished residential property subject to the City’s rent control 

law, and built new residential rental units on the same property 

within five years, the newly constructed units also were subject 

to the rent control law. (Id. at p. 17.) Here, of course, we are 

dealing not with a conflict between two statutes, but between 

a statute and an ordinance.
5

on pool.” A box entitled “Granted” is checked and dated the same 

day. Under “Conditions of Approval” is handwritten “C/O.”

The parties disagree about what inference should be drawn 

from the fact that the request was “granted” the same day it 

was filed. Appellants argue it must mean an inspector “already 

[had] performed the required verification” of “life and safety 

regulations”—before the request even was submitted. The City 

argues “the record suggests that the City would not issue a 

temporary certificate of occupancy on the same date it received” 

the request and the “grant” might mean only that the City had 

“simply granted the request to inspect the property.”

Again, the deposition testimony does little to solve this 

mystery. Catherine Nuezca Gaba is the Chief of the Permitting 

and Engineering Bureau within the Department of Building 

and Safety. Gaba explained “[a] temporary certificate of 

occupancy allows occupancy only for a small duration of time 

until the applicant or the contractor completes what’s necessary 

to give [sic] a certificate of occupancy.” When asked, “Is it fair 

to say that between 1966 and 1979, the City of Los Angeles 

issued a certificate of occupancy automatically upon inspection 

of a building assuming that the building met relevant safety and 

other requirements?”, Gaba responded, “Correct.” Gaba said, 

in those years, someone who wanted a temporary certificate 

of occupancy would request “a modification,” “a deviation from 

the code.”

Appellants’ counsel asked Gaba, “If the request for 

modification of building ordinance seeking a temporary certificate 

of occupancy had been granted in either 1977 or 1978, what, 

if anything, would have happened next in terms of the issuance 

of a temporary certificate of occupancy?” Gaba answered, “The 
6

inspector would have to verify that the building meets the life 

and safety regulations.” Gaba then testified she “would not 

know” whether in 1977 and 1978 a “request for modification of 

building ordinance seeking a temporary certificate of occupancy 

would have been granted before an inspection of the building . . . 

that was the subject of the request.” She added, “It would be 

a guess to anyone.”

Appellants’ counsel asked Gaba whether—once the 

inspector had inspected the building and found it met all 

requirements—the Department “would have issued a subsequent 

document that was called [a] temporary certificate of occupancy.” 

Gaba answered, “Yes.” Later in her deposition, Gaba said 

the check mark in the “granted” box meant “the request had 

been granted.” Counsel asked, “So the request for modification 

of building ordinance was granted . . . so that a temporary 

certificate of occupancy could be issued[?]”, and Gaba responded, 

“Correct.” When asked again, “[W]as a separate document called 

temporary certificate of occupancy issued on the basis of the 

decision to grant this request?”, Gaba said, “I would not know.” 

Gaba testified there was no indication in the file that the 

property was being used or occupied for residential purposes 

before the certificate of occupancy issued on October 16, 1978.

With their reply brief in the trial court, appellants 

submitted a declaration by current tenant Holly Morris, 

attaching February 1978 classified advertisements from 

the Valley News, as well as a declaration by a woman named 

Sylvia Manders. Manders declared she had lived at the property 

“beginning on a date prior to October 1, 1978.” The owner’s 

counsel objected to this submission of new evidence in a reply. 

Judge Beckloff concluded the parties should be permitted to 
7

submit their evidence to HCID on the issue of “whether the 

Property could have been occupied or was occupied prior to 

October 1, 1978.” Accordingly, on August 15, 2019, the court 

remanded the matter to HCID.

In a November 15, 2019 letter to appellants’ counsel, HCID 

reported it had completed “a further review of the applicability 

of RSO to this property.” HCID listed the “documentation” 

submitted by counsel for appellants4 and the owner. The owner 

had submitted a report from a private investigator that “there 

was no evidence [Manders] resided at the complex in 1978.” 

The relevant telephone company (AT&T/Pacific Bell) advised 

the investigator “that no phone records existed at the complex 

prior to October 1, 1978” and “no active telephone connections 

were available in any of the units” before that date. Neither the 

Department of Water and Power nor Edison had any records 

for any individuals “registering” for accounts at the property. 

Department of Motor Vehicle records for 1978 and 1979 did 

not show Manders ever gave the property as her address. Nor 

did Social Security Administration records or voter registration 

records. HCID noted Manders attached “no supporting 

documents” to her declaration.5 As for the newspaper 

4 Even though appellants represented to Judge Beckloff that 

they had “found and spoken with people over the last few months 

. . . who have confirmed . . . they indeed lived at the Property 

prior to October 1978,” Manders’s declaration was apparently the 

only one they submitted to HCID of someone who claimed to have 

lived there before October 1, 1978.

5 Appellants assert the investigator searched for a “Silvia 

Manders” when Manders’s name at the time was “Silvia Lefitz.” 

Appellants are mistaken. First, the declaration appellants 
8

advertisements appellants submitted, HCID noted the property 

developer first advertised the “Grand Opening” on February 10, 

1978, six days before the request for modification was filed. 

In HCID’s view, these “advertise[ments] for reservations” did 

not “demonstrate that any units were rented and occupied prior 

to the pivotal date of October 1, 1978.”

Finally, we are not talking here about the mere failure 

of a government agency to locate a piece of paper in its files 

from some 43 years ago. No one seems to know if a temporary 

certificate of occupancy issued and was lost, or never was 

issued at all. But the record also includes a computer run of 

all Department of Building and Safety-issued documents on 

the property.6 The report shows building permits for dates 

ranging from February 19267to March 2002, certificates of 

themselves submitted—signed by Manders—spells her first 

name “Sylvia,” not “Silvia.” Second, HCID’s summary of the 

investigator’s submission does not say he searched by that name, 

only that he searched for that person. HCID’s summary 

specifically states the investigator searched Social Security 

Administration records “with respect to Ms. Manders (and all 

other names used by her),” as well as voter registration records 

for “Manders (and Lefitz) for 1974 through 1984.”

6 The City described this document as “a printout of the 

[Department of Building and Safety’s] Online Document Search: 

Summary Report for the Property, which report identifies all of 

[the Department’s] forms and documents on file for the Property 

as of March 27, 2019.”

7 The record does not reflect what sort of building—if any—

was on the property between 1926 and 1977 when the 

apartments at issue began construction.
9

occupancy dated October 16, 1978, and several other documents 

referred to as “BAAB BOARD FILE” (dated 1977-1978), 

“EARTHQUAKE” (dated 1994), and “RECORDED DOCUMENT” 

(dated 1995 and 1997). Nowhere does this computerized list 

of all documents issued on the property include a temporary 

certificate of occupancy.8 One would think that, if a temporary 

8 HCID’s July 1, 2016 letter to the owner stated, “Property 

records indicate that a Temporary Certificate of Occupancy 

1977VN60384 was issued February 16, 1978.” But the 

Department’s computer printout identifies document number 

1977VN60384 as both a “BUILDING PERMIT,” dated July 11, 

1977, and a “CERTIFICATE OF OCCUPANCY,” issued 

October 16, 1978.
10

certificate of occupancy had issued in February 1978, it would 

have been reflected in the Department’s computerized files of 

“all documents” for the property.9

9 Neither appellants nor the City have cited Evidence Code 

section 664. Accordingly, we do not have the benefit of briefing 

on the question of whether the presumption that an “official duty 

has been regularly performed” applies and, if so, what we should 

presume. Should we presume the City inspected the property 

in February 1978 and did not issue a temporary certificate of 

occupancy because there was some outstanding issue? Or 

that the property passed inspection and a temporary certificate 

of occupancy issued even though it does not appear in the 

Department’s computerized records? I agree that—if it’s the case 

the property was not in fact subject to the RSO—it is surprising 

it took someone until 2016 to figure that out. But to draw from 

that inaction and the passage of time a presumption that the City 

in 1978 correctly determined the property was subject to the RSO 

strikes me as an estoppel or laches theory. Estoppel against a 

governmental entity is subject to very particular requirements. 

(See generally Schafer v. City of Los Angeles (2015) 237 

Cal.App.4th 1250, 1261-1264.)
11

In short, on this record we simply do not and cannot know 

what happened in 1978. Both parties want us to speculate. 

Courts are not in the business of speculation. When the evidence 

leaves this sort of uncertainty about the facts, the question is 

which party bears the burden of proof. Those parties here—

despite their protestations—are appellants. Judge Beckloff, 

whose careful and thorough consideration of the entire record and 

all of the arguments in this case is evident, concluded “the court 

has no evidence . . . an inspection occurred or the results of such 

an inspection, even assuming one did occur,” and thus appellants 

had “not persuaded the court that the evidence suggests the 

Property is subject to the RSO.” I agree with him.

EGERTON, J.