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Filed 6/16/15; pub. order 7/9/15 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

T & A DROLAPAS & SONS, LP,

Plaintiff and Appellant,

v.

SAN FRANCISCO RESIDENTIAL RENT 

STABILIZATION AND ARBITRATION 

BOARD et al.,

Defendants and Respondents;

GERALD BORJAS,

Real Party in Interest and 

Respondent.

 A139432

 (City & County of San Francisco 

 Super. Ct. No. CPF-12-511944)

In this case we must decide whether Civil Code section 1954.53,1subdivision

(d)(2) authorizes a San Francisco landlord to raise the rent without limit on an apartment 

otherwise subject to rent control when an occupant, who moved into the apartment as a 

child when his parents took possession, remained in possession of the unit after his 

parents vacated it. The San Francisco Residential Rent Stabilization and Arbitration 

Board (Rent Board) ruled in favor of the adult child in these circumstances and the 

superior court upheld its decision. On review here, we have the benefit of the recent 

opinion in Mosser Companies v. San Francisco Rent Stabilization and Arbitration Board

(2015) 233 Cal.App.4th 505 (Mosser Companies) where a panel in Division Three of this 

 

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Statutory references are to the Civil Code unless otherwise indicated.
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district addressed the identical issue. Seeing no basis for distinguishing our case from 

Mosser Companies and no reason to disagree with the conclusions or the analysis in that 

case, we follow Mosser Companies and affirm the judgment.

STATEMENT OF THE FACTS

On September 3, 1995, Javier and Barbara Lara began renting the apartment at 

3380 21st Street, Unit 4, of a nine-unit building in San Francisco. The Laras took 

occupancy of the unit pursuant to a written rental agreement with the building’s then 

owner, but no copy of that agreement now exists. Gerald Borjas (Borjas), the real party 

in interest and eldest of three Lara children, was six years old at the time he and his 

family moved into the apartment. There is no evidence that the occupancy by the entire 

family was in any manner inconsistent with the rental agreement or was without the 

landlord’s permission. The initial rent on the apartment was $775. 

Appellant, T & A Drolapas & Sons, LP (Drolapas), purchased the building 

containing the unit rented to the Laras in approximately April 2000. During escrow the

Laras signed and provided to Drolapas an “Estoppel Certificate: Landlord Questionnaire” 

in which they stated that Javier and Barbara Lara were the “tenants” but that the unit was 

“occupied” by two adults and four children, and this was the “number of allowable 

tenants.” Drolapas points out that the Estoppel Certificate was not signed by Borjas as 

the tenant, naturally enough, as he was approximately 11 years old at the time. 

Javier and Barbara Lara bought a home in Daly City in December 2010 and began 

using that property as their principal residence. Borjas did not move with his parents to

Daly City and has continuously lived in the unit on 21st Street in San Francisco. Because 

Borjas’s income is sometimes unstable, Javier and Barbara Lara have continued to pay 

rent for the apartment on 21st Street. Borjas pays them rent for the apartment when he is 

able to do so. 

On May 10, 2011, Drolapas served Javier and Barbara Lara with a 60-day notice 

of a rent increase from $1,171.32 to $2,000.00 per month, effective July 15, 2011. The 

notice stated that the unit did not fall within the jurisdiction of the San Francisco 
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Residential Rent Stabilization and Arbitration Ordinance because Javier and Barbara Lara

no longer occupied it. 

PROCEDURAL BACKGROUND

Drolapas filed a landlord’s petition with the Rent Board on May 10, 2011, seeking 

a determination that the unit was not subject to rent control pursuant to Rent Board Rules

and Regulations and the Costa-Hawkins Rental Housing Act (the Costa-Hawkins Act or 

the Act) (§ 1954.50 et seq.). Borjas subsequently filed a tenant’s petition alleging the 

rent increase was illegal and taking the position he was an “original occupant” of the 

premises. 

Disputing that Borjas was an “original occupant,” Drolapas claimed it was allowed 

to raise the rent on the unit by any amount it desired under section 1954.53, subdivision 

(d)(2), which provides as follows: “If the original occupant or occupants who took 

possession of the dwelling or unit pursuant to the rental agreement with the owner no 

longer permanently reside there, an owner may increase the rent by any amount allowed 

by this section to a lawful sublessee or assignee who did not reside at the dwelling or unit 

prior to January 1, 1996.”

A Rent Board Administrative Law Judge (ALJ) heard the matter on September 15, 

2011, and issued a decision on December 14, 2011. The ALJ agreed with Borjas, ruling 

that he “was an original occupant who took possession of the unit pursuant to the rental 

agreement in 1995, and that he continues to permanently reside in the unit.” The ALJ

also concluded that “even assuming Mr. Borjas was not an original occupant, the 

undisputed evidence showed that he was a subtenant who resided in the unit prior to 

January 1, 1996. Thus, whether Mr. Borjas is an original occupant or a subtenant who 

resided in the unit prior to January 1, 1996, Civil Code Section 1954.53(d)(2) does not 

authorize an unlimited rent increase.” The ALJ declared the notice of rent increase to 

$2,000.00 per month was null and void. Drolapas appealed the decision to the entire

Rent Board, which denied the appeal on January 31, 2012.

On February 15, 2012, Drolapas filed in superior court a petition for writ of 

administrative mandamus and complaint for declaratory relief, under Code of Civil
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Procedure sections 1085 and 1094.5. The petition sought a writ compelling the Rent 

Board to set aside its decision and further sought a trial de novo in superior court, or in 

the alternative an order compelling the Rent Board to conduct a new hearing with a 

declaration from the court that Borjas was not an original occupant or a subtenant who 

resided in the unit prior to January 1, 1996.

The matter was heard by Judge Ronald E. Quidachay on December 3, 2012, who 

denied the petition and the claim for declaratory relief in a written statement of decision

filed April 15, 2013, and reduced to judgment June 4, 2013. The court concluded that the 

Rent Board did not abuse its discretion in determining that Borjas was an original 

occupant under section 1954.53, subdivision (d)(2), or else was a subtenant who resided 

in the unit prior to January 1, 1996. Either way, the court held, Borjas was entitled to the 

protection of the rent control ordinance. Drolapas then filed a timely notice of appeal. 

DISCUSSION

On appeal, Drolapas contends Borjas did not qualify as an “original occupant” 

and, as a child, he did not “take possession” of the unit “pursuant to the rental agreement” 

in 1995. It further contends Borjas was not a “subtenant who resided in the unit prior to 

January 1, 1996.”

Ordinarily we review the decision whether to grant a writ of administrative 

mandamus to determine whether there was “a prejudicial abuse of discretion in the 

administrative agency’s decision.” (Cobb v. San Francisco Residential Rent Stabilization 

& Arbitration Bd. (2002) 98 Cal.App.4th 345, 350; Code Civ. Proc. § 1094.5, subd. (b).) 

The arguments raised by appellant, however, present issues of statutory interpretation, 

pure questions of law on essentially undisputed facts, which are subject to de novo 

review. (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627; 

Danekas v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2001) 95 

Cal.App.4th 638, 643.)

The Costa-Hawkins Act was enacted in 1995 to ameliorate the impact of local rent 

control efforts, and specifically vacancy control, through which rent controls in a few 

locales remained in place even when an apartment was voluntarily vacated and a new 
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tenancy began. The legislation was billed by proponents as a “moderate approach to 

overturn extreme vacancy control ordinances which unduly and unfairly interfere into the 

free market.” (Bill Analysis of AB 1164 for the Assembly Floor (July 24, 1995) 

<http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_1151-1200/ab_1164_cfa_950724_

180346_asm_floor.html> [as of June 15, 2015].) The Act preempts local rent control 

ordinances in some circumstances. “Its overall effect is to preempt local rent control 

ordinances in two respects. First it permits owners of certain types of property to adjust 

the rent on such property at will, ‘[n]otwithstanding any other provision of law.’ (Civ. 

Code, § 1954.52, subd. (a).) Second it adopts a statewide system of what is known 

among landlord-tenant specialists as ‘vacancy decontrol,’ declaring that ‘notwithstanding 

any other provision of law,’ all residential landlords may, except in specified situations, 

‘establish the initial rental rate for a dwelling or unit.’ (Civ. Code, § 1954.53, subd. (a).)” 

(DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 40-41; accord, Action Apartment Assn., 

Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1237.) “San Francisco’s ordinance 

is consistent with the Costa-Hawkins Act in allowing a landlord to set the initial rental 

rate on vacated units. (S.F. Admin. Code, § 37.3, subd. (d)(1).)” (Mosser Companies, 

supra, 233 Cal.App.4th at p. 511.) Determining when a tenancy ends and a new tenancy 

begins―so that the landlord may reset the rent without the constraint of local rent 

control―is the question posed by this appeal.

Mosser Companies, supra, 233 Cal.App.4th 505, dealt with a similar set of facts 

and the identical statute. In Mosser Companies, Brian, the current occupant of a rentcontrolled apartment on Fell Street in San Francisco, had moved into the apartment when 

his parents took possession of it when he was 13 years old. (Mosser Companies, supra,

at p. 509.) Nine years later, after two of their three children left home, Brian’s parents 

moved to a different location, but Brian, who was then 23 years old, stayed on in the Fell 

Street apartment. (Ibid.) The landlord then announced it was raising the rent from 

$1,681.75 to $3,295 on the theory that the “original occupants”―Brian’s parents―no 

longer lived in the apartment. (Ibid.) On the question of whether Borjas was an “original 
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occupant,” we find Mosser Companies to be materially indistinguishable from the case 

before us. 

Drolapas argues an “original occupant” must be a “tenant that is a party to the 

rental agreement.” Mosser Companies rejected that interpretation and decided that “the 

son of parents who years before rented a unit in landlord’s building, and who with 

landlord’s consent resided with his parents when the rental agreement was entered, is an 

‘original occupant’ within the meaning of the statute, precluding the landlord from 

establishing a new unrestricted rental rate for the apartment when the son remains in the 

apartment after the parents have departed.” (Mosser Companies, supra, 233 Cal.App.4th 

at p. 508.) Mosser Companies concluded that “the son, although a minor when the rental 

agreement was entered and not a signatory to the rental agreement, is nonetheless an 

‘original occupant’ entitled to the continued protection of the rent control provision.” 

(Ibid.)

That settles the first of the issues raised by Drolapas. “An ‘occupant’ is 

commonly defined as ‘one who occupies a particular place; esp[ecially]: RESIDENT.’

(Merriam-Webster’s Collegiate Dict. (11th ed. 2007) p. 858, col. 1.) The plain meaning 

of an ‘original occupant ... who took possession of the dwelling or unit pursuant to the 

rental agreement’ (§ 1954.53, subd. (d)(2)) is an individual who has resided in the 

dwelling from the start of the tenancy with the landlord’s permission.” (Mosser 

Companies, supra, 233 Cal.App.4th at p. 512.) Even as a six-year-old child when he 

moved into the apartment, Borjas was an “original occupant” within the meaning of 

section 1954.53, subdivision (d)(2). This holding is, of course, consistent with the ruling 

of the Rent Board and the trial court in the present case.

Whether Borjas “took possession” of the unit “pursuant to the rental agreement,”

(§ 1954.53, subd. (d)(2)) considering he was a minor when he entered into occupancy of 

the apartment in 1995, was also settled by Mosser Companies: “ ‘Possession’ is a 

commonly understood term normally referring to physical possession. Limiting the term 

to parties to a legal agreement is inconsistent both with this common understanding and 

with the terms used in the statute. The statute refers to an ‘occupant’ rather than a 
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‘tenant,’ ‘lessee,’ or ‘party.’ These terms have distinct and well-established meanings, 

making it unlikely the Legislature used the term ‘occupant’ when it meant party to a 

rental agreement. That the Legislature’s use of the term ‘occupant’ was deliberate and 

intended to signify something distinct from a party to the lease is confirmed when the 

statute is read as a whole.” (Mosser Companies, supra, 233 Cal.App.4th at p. 513.)

Finally, we address a portion of the statutory language not at issue in Mosser 

Companies, namely the provision relating to subtenants who inhabited the rent-controlled 

unit prior to the effective date of the Act. First, we find nothing inconsistent in the Rent 

Board’s or trial court’s ruling that Borjas was both an “original occupant” and a 

“subtenant.” Drolapas’s argument to the contrary is based on the notion that an “original 

occupant” must be one who took possession as a “tenant that is a party to the rental 

agreement.” Having rejected that premise, we also reject the notion that a single 

individual cannot be both an “original occupant” and a “subtenant.”

As we read the statute, when the original occupants have vacated a rent-controlled 

unit, section 1954.53, subdivision (d)(2) allows rent increases “to a lawful sublessee or 

assignee who did not reside at the dwelling or unit prior to January 1, 1996.” This 

language necessarily implies that the landlord may not increase the rent without limit if 

the sublessee or assignee did reside in the unit prior to January 1, 1996. We find no error 

in the Rent Board’s or court’s conclusion that Borjas was a “subtenant who resided in the 

unit prior to January 1, 1996.” The court correctly saw the subtenant issue as an 

“alternative holding provid[ing] a distinct ground for denial of the writ petition and 

declaratory relief claim.” 

Drolapas argues Borjas did not become a subtenant until 2011 because his parents 

continued as the tenants under the lease and continued paying the rent. According to 

Drolapas, the statute prohibits open-ended rent increases only for those who were 

subtenants prior to January 1, 1996. But that temporal connection is not contained in the 

language of the statute, and we will not read such a limitation into it. The clause has two 

requirements: (1) the individual must be a “lawful sublessee or assignee,” and (2) he or 

she must have “reside[d] at the dwelling or unit prior to January 1, 1996.” (§ 1954.53, 
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subd. (d)(2).) There is no requirement under the statute that those two qualifications must 

have been met simultaneously. Borjas was a subtenant beginning in 2011, and he did

reside in the unit prior to January 1, 1996. Because he met both requirements, he was 

entitled to the protection of the local rent control ordinance.

Certain countervailing policy arguments might well counsel against allowing a 

rent-controlled apartment to be passed on “from friend to friend or generation to 

generation.” But it seems to us the risk of that happening can be overstated easily. 

“[T]he protection afforded here is limited in scope to lawful and original occupants. A 

rent-controlled apartment cannot, as landlord fears, be passed on freely ‘from friend to 

friend or generation to generation.’ Only those occupants who reside in the apartment at 

the start of the tenancy and do so with the landlord’s express or implicit consent are 

protected from unregulated rent increases.” (Mosser Companies, supra, 233 Cal.App.4th 

at p. 516.) 

In any event, as Mosser Companies pointed out: “Although a compelling policy 

argument can be made for qualifying rent control restrictions when a tenancy passes from 

one generation to the next, the current statute incorporates no such qualification. We 

therefore conclude that the rent board correctly prohibited landlord from increasing the 

rent to the son above the rent control limit when his parents vacated the apartment, and 

the trial court correctly denied landlord’s petition for a writ of mandate challenging the 

rent board’s action.” (Mosser Companies, supra, 233 Cal.App.4th at p. 508.) 

We too conclude: “Whether the application of rent control protection to occupants 

who begin their residency as minors is wise economic policy is a question for legislative, 

not judicial, determination. Local and state legislators are free to make these public 

policy determinations provided the rent regulation does not deprive property owners of a 

fair return on their investment. (Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1021.)

No claim of a confiscatory taking is raised in this case. We must therefore apply the law 

as written, and the current law does not permit vacancy decontrol until all lawful 

occupants residing in a dwelling at the start of the tenancy vacate the premises. (§ 

1954.53, subd. (d)(2) & (3).)” (Mosser Companies, supra, 233 Cal.App.4th at p. 517.) 
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DISPOSITION

The judgment is affirmed.

_________________________

Streeter, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Reardon, J.
Filed 7/9/15 after filing 

nonpublished opinion 6/16/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

T & A DROLAPAS & SONS, LP,

Plaintiff and Appellant,

v.

SAN FRANCISCO RESIDENTIAL RENT 

STABILIZATION AND ARBITRATION 

BOARD et al.,

Defendants and Respondents;

GERALD BORJAS,

Real Party in Interest and 

Respondent.

 A139432

 (City & County of San Francisco 

 Super. Ct. No. CPF-12-511944)

 ORDER CERTIFYING OPINION

 FOR PUBLICATION

THE COURT:

The opinion in the above-entitled matter filed on June 16, 2015, was not certified 

for publication in the Official Reports. For good cause, the request for publication is 

granted.

Pursuant to California Rules of Court, rules 8.1105 and 8.1120, the opinion in the 

above-entitled matter is ordered certified for publication in the Official Reports. Listing 

of counsel is attached hereto.

Dated: _________________ ________________________________

Ruvolo, P.J.
T & A Drolapas & Sons, LP v. San Francisco Residential Rent Stabilization and 

Arbitration Board (A139432)

Trial court: City & County of San Francisco Superior Court

Trial judge: Hon. Ronald Quidachay

Counsel for Plaintiff/Appellant: Fried & Williams, Clifford E. Fried

Counsel for Defendants/ 

Respondents: San Francisco Office of the City Attorney

Dennis J. Herrera, City Attorney, 

Wayne K. Snodgrass, Deputy City Attorney