BOARD OF APPEALS CITY AND COUNTY OF SAN FRANCISCO

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5 Dennis Zaragoza, Esq. (SBN ) LAW OFFICES OF DENNIS ZARAGOZA P.O. Box San Francisco, CA Telephone: (510) Attorney for Appellant Henry Go BOARD OF APPEALS CITY AND COUNTY OF SAN FRANCISCO HENRY GO, vs. Appellant, DEPARTMENT OF BUILDING INSPECTIONS, Respondent. CLAY GO and JOSSIE GO, Real Parties in Interest. Permit No. 2014/06/11/8118 APPELLANT HENRY GO S BRIEF IN SUPPORT OF REVOVATION OF PERMIT Summary On August 6, 2014, Real Parties in Interest CLAY GO and JOSSIE GO ( Real Parties ) obtained a permit allowing them to demolish an illegal unit behind the garage at 147 Hahn Street, San Francisco, California. The permit was issued at the counter without notice to the residents of the illegal unit, HENRY GO and GRACE P. GONZALEZ. (Sometimes collectively referred to as Tenants or Henry Go. ) The following day, Real Parties appeared at a settlement conference in an unlawful detainer action brought against Henry Go. In an effort to reinforce their demands that Henry Go must move from the premises, Real Parties disclosed that a demolition permit had been issued the previous day Henry Go s Brief on Appeal Page 1

6 for his unit. After the settlement conference ended, counsel for Henry Go went to the Department of Building Inspections and confirmed that a demolition permit had been issued for Henry Go s unit. Issues on Appeal In this appeal, Henry Go seeks the revocation of the demolition permit allowing Real Parties to demolish the illegal residence located in and past the garage area. The issues on appeal are: 1. Under California law, Henry Go had rights as a tenant even after the Notice of Violation were issued by the Department of Building Inspection. By issuing a demolition permit without notice or hearing, Henry Go s rights to procedural due process were violated as protected by the 5th Amendment to the U.S. Constitution, as imposed on the States through the 14 th Amendment and as protected by Article I, Section 7, of the California Constitution. 2. A question arises whether the local procedures allowing a demolition permit to be issued for an illegal unit, without notice or hearing, conflicts with California state law provisions on housing policy as well as the rights afforded to tenants living in substandard housing to seek an injunction requiring the landlord to upgrade the unit. 3. Finally, because the San Francisco Assessor s Office did not recognize the Real Parties as the owners of 147 Hahn (due to a cloud on title), the Department of Building Inspections issued the Notice of Violations to one of the past owners of record, Frederico Parangan. Nevertheless, the Department of Building Inspections issued the demolition permit to Real Parties despite knowledge of this apparent problem. Facts on Appeal Henry Go (the individual) is 58 years old. While he has been disabled for some years, the State of California formally acknowledged his disability in January of (Please see Declaration of Henry Go, 1.) Henry Go began living at 147 Hahn Street in or around Frederico Parangan was his landlord. At that time, he was living in the upper (legal) portion of the house. (Please see Declaration of Henry Go, 2.) In or around November 2011, Henry Go was told that Real Parties would be purchasing 147 Hahn, and that they could no longer stay in the main house. The storage area and garage below the house was modified so that it would how contain their new living unit. (Henry Go Declaration, 3.) Henry Go s Brief on Appeal Page 2

7 In or around December 2011, the Tenants moved into the downstairs unit. (Id., 4.) As of May 2014, approximately one-half of Henry Go s income was paid for rent. At the time that they moved in and up to the present, this new unit had no heater. There is no kitchen sink. The only sink for washing dishes is in the bathroom. There are no smoke detectors. The lighting is poor. The bathroom ventilation is poor resulting in mold. Electrical wiring hangs from the walls and ceilings. At one point, the bedroom window and the bathroom window were covered by plywood. In late 2013, the landlord installed a double bolt lock for the back door leading to the backyard, resulting in the Tenants having no fire escape other than the front door near the garage door. (Henry Go Declaration, 4-5.) Due to a complaint, the Department of Building Inspections began examining work performed at the house without permit, including an exterior deck at the back of the house. (Please see Ex. A, page 1 of the Complaint Data Sheet, dated January 27, 2014, and the Notice of Violation, dated January 30, 2014, to Request for Judicial Notice.) Eventually, the Department of Building Inspections determined that the lower unit was illegal. (Feb. 18, 2014, Complaint Data Sheet, Request for Judicial Notice, Ex. B and further described in a May 21, 2014, Notice of Violation, attached as Ex. C to the Request for Judicial Notice.) Additional inspections, including the respective Notices of Violation requiring certain repairs to the property have been attached to the Request for Judicial Notice as Exhibits E and F. On August 7, 2014, a mandatory settlement conference was held in an unlawful detainer action brought by the Real Parties against Henry Go. After this conference ended, Tenants attorney was able to confirm that a permit had been issued to Real Parties on August 6, 2014, allowing the demolition of their unit without prior notice or hearing. (Please see Declaration of Dennis Zaragoza, 3 and Henry Go Declaration, 6-7.) Analysis of Facts and Law 1. The Violation of Procedural Due Process In Arrieta v. Mahon (1982) 31 Cal.3d 381, the California Supreme Court held that the eviction procedures used by the Los Angeles County Marshal s Department violated the right to procedural due process as protected by the 5 th Amendment to the U.S. Constitution as applied to the Henry Go s Brief on Appeal Page 3

8 states through the 14 th Amendment and Article I, section 7, of the California Constitution. As explained by the California High Court, the Los Angeles County Marshal s Department s procedure allowed them to evict all tenant, including those living there before the unlawful detainer action started, irrespective of whether they had notice of the unlawful detainer proceedings. (At p. 384.) The tenants brought a taxpayer s action as authorized by Code of Civil Procedure section 526a, seeking declaratory relief and an injunction based upon the due process violations. (Arrieta v. Mahon, supra, 31 Cal.3d 381, 385.) Even though a nonstatutory remedy was available to tenants, the California High Court found that this remedy was not an acceptable substitute for a regular process assuring notice and a hearing. (At p. 391.) The situation at hand is similar to the situation in Arrieta because a tenant in possession has no right to notice before the demolition permit is issued, and, due to a lack of notice, the time to appeal its issuance can run before a tenant has the right to a hearing challenging whether the permit should be issued. Does the fact that this unit was illegal diminish or eliminate the tenant s rights? The answer to this question is no. In the recent case of Erlach v. Sierra Asset Servicing (2014) 226 Cal.App.4 th 1281, 1296, the appellate court explained how tenants living in an illegal unit or in substandard housing continue to have rights in the premises. As a general rule, California law recognizes that the courts will not enforce an illegal bargain or help a party to an illegal act. (Erlach v. Sierra Asset, supra, 226 Cal.App.4 th 1281, 1295.) Rental agreements involving units without a certificate of occupancy are generally considered as unlawful and void. (Id.) "Nonetheless, the rule barring the enforcement of unlawful contracts is not absolute. Because the rationale for the rule is founded on deterrence, the Supreme Court has made clear that courts '"should not... blindly extend the rule to every case where illegality appears somewhere in the transaction. The fundamental purpose of the rule must always be kept in mind, and the realities of the situation must be considered. Where, by applying the rule, the public cannot be protected because the transaction has been completed, where no serious moral turpitude is involved, where the defendant is the one guilty of the greatest moral fault, and where to apply the rule will be to permit the defendant to be unjustly enriched at the expense of the plaintiff, the rule should not be applied."' [Citation.]" (Id., at p. 1295, quoting Carter v. Cohen, supra, 188 Cal.App.4th 1038, 1048.) Henry Go s Brief on Appeal Page 4

9 Courts have thus permitted parties to obtain benefits under a law enacted for their protection, despite their participation in transactions that contravened the law [citation]. Similarly, courts have permitted parties to enforce contracts that contravene statutes enacted for the parties' benefit [citation.]" (Id., quoting Carter v. Cohen, supra, 188 Cal.App.4th at p ) As explained in Erlach, the California Legislature has recognized that a tenant continues to have rights in the premises even if the building has been red tagged. Here, the landlord should not benefit by his or her illegal conduct by accepting rent for an illegal unit and then demolishing the unit to avoid the legal consequences of his or her misconduct. In Erlach, the new owner of a foreclosed building argued that the tenancy ended when the building was red tagged. (The previous owner shut off the utilities to the building.) (Erlach v. Sierra Asset, supra, 226 Cal.App.4 th 1281, ) Construing various state statutes, the Erlach court held: Throughout much of its argument Sierra conflates the right to occupy with the right to maintain a tenancy. A tenancy is not terminated when a building inspector orders the tenants to vacate the property due to unsafe conditions. Rather, pursuant to Civil Code section 1941, with exceptions not relevant here, and Health and Safety Code section , the landlord must put the property into a condition fit for occupation and repair all subsequent dilapidations. (Erlach v. Sierra Asset Servicing, supra, 226 Cal.App.4 th 1281, 1292.) California law thus supports the preservation of adequate housing by generally requiring that the landlord make an untenable unit habitable. The Erlach court then explained how Health and Safety Code sections and create a statutory scheme providing certain remedies to address substandard housing that is unsafe. (Erlach v. Sierra Asset Servicing, supra, 226 Cal.App.4 th 1281, 1293.) The Erlach court went on to explain the remedies available to the agency if a landowner fails to comply with a notice of violation within a reasonable time. (Id.) Because this statutory scheme consistently refers to tenants living in substandard housing as tenants, even if the building is found to be untenable, the Erlach court concluded that the tenant continues to have all of the statutory legal rights and remedies, including the right of injunctive relief requiring that the landlord bring the unit up to code. (Id., at p ) In footnote 7 of the Erlach opinion, the court quoted Health & Safety Code section 17980, Henry Go s Brief on Appeal Page 5

10 subd. (c)(2), for the following requirement: However, "[i]n deciding whether to require vacation of the building or to repair as necessary, the enforcement agency shall give preference to the repair of the building whenever it is economically feasible to do so without having to repair more than 75 percent of the dwelling, as determined by the enforcement agency, and shall give full consideration to the needs for housing as expressed in the local jurisdiction's housing element." (Erlach v. Sierra Asset Servicing, supra, 226 Cal.App.4 th 1281, 1294, fn. 7.) As there was no notice, hearing or record of the information presented to obtain the demolition permit, it cannot be determined whether this state imposed standard was met at the time when the demolition permit was issued. Instead, the absence of a record creates an inference that the responsible agency failed to recognize the requirements of this statute and make any determination regarding whether it was economically feasible to repair the dwelling to meet code requirements. Here, these various failures demonstrate that the Tenants were deprived of procedural due process and the right to be heard regarding their interests in the tenancy. As a result of these violations, the demolition permit should be revoked. 2. Local Procedure Conflicts with State Law Henry Go is 58 and disabled. He pays approximately 50% of his income for rent. And while that may seem to be high, after living at 147 Hahn for 10 years, a move to a new location in San Francisco is likely to cost much more than his current payment. For decades, the California legislature has recognized the need to protect and preserve housing, and particularly for low income residents, the elderly and the disabled. For example, Health & Safety Code section 50004, relating to State Housing Policy and General Provisions, recognizes the economic benefit to the state and public to encourage the availability of adequate housing for persons and families of low or moderate income and the need to provide decent housing for those persons and families. Health & Safety Code section , while primarily dealing with the need for housing for the homeless, identifies the need for public programs that implement and have the goal of, inter alia, preventing the displacement of very low income households from existing housing. (Health & Safety Code, , subd. (f).) Henry Go s Brief on Appeal Page 6

11 Finally, in 1997, the California Legislature passed Health & Safety Code section as part of the State Housing Policy and General Provisions. One findings appearing in this statute is: Sufficient safe, sanitary, and affordable housing is not available for households with special needs, particularly elderly and disabled households. (Health & Safety Code, 50010, subd. (a)(4).) One of the legislative declarations in this statute is the critical need to preserve and rehabilitate homes and rental housing. (Health & Safety Code, 50010, subd. (b)(4)(c).) In this case, the Real Parties (owning a partial interest in the property as discussed below) were able to obtain a demolition permit for an existing unit that was currently rented out to tenants. As part of the application process, the record fails to show any investigation as to whether the unit was occupied, and whether those tenants had any special needs criteria as discussed in Health & Safety Code section 50010, which should have afforded them some additional protection from having their unit destroyed without notice or hearing. The record does show that the permit was issued to cure or correct certain Notices of Violation that were issued by the Department of Building Inspections. However, as discussed above, the record fails to show whether the unit could be repaired under the standard found in Health & Safety Code section 17980, subd. (c)(2) before a permit was issued allowing the owner to demolish the unit. From all appearances, the current local procedure allowing an owner to obtain a demolition permit for a residential unit without: (1) an inquiry as to the status of the tenant; (2) the tenant s rights to require repair of the unit, (3) notice and an opportunity to hear any objections by the tenant, and (4) the condition of the tenant as elderly or a special needs tenant conflicts with the State Housing Policy as well as Health and Safety Code sections and If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void." (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, quoting Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.) Preemption is evident because the local procedure fails to adequately protect a tenant s rights as recognized by Health and Safety Code sections and If an owner of a building is seeking a demolition permit to cure a notice of violation without Henry Go s Brief on Appeal Page 7

12 notice or hearing, the owner should first certify that the unit is vacant and is not the subject of an existing rental agreement. For example, if the owner obtains the tenant s cooperation for repairs and asks that the tenant temporarily leave the unit, these circumstances would not create a vacant unit as the tenant would continue to have ongoing rights. Due to the lack of affordable housing in California, the State, the existing tenants and the local governing entity have an interest in maintaining residential properties. When a local procedure conflicts with the stated goals of state law, it should be amended so that it conforms to the governing law or its stated goal(s). Here, the local procedures failed to identify and balance the statutorily identified interests of the State and the Tenants. Because of this failure, the permit should be revoked. 3. The Inconsistent Treatment re: Ownership In this particular case, the San Francisco Recorder s Office has a grant deed on file, recorded on September 15, 2009, whereby Frederico Parangan deeded to Rolando DeGuzman, a single person, and to Frederico Parangan, a single man, an interest in 147 Hahn Street as joint tenants. (Ex. D to the Request for Judicial Notice.) On December 7, 2011, a grant deed was recorded deeding 147 Hahn Street from Frederico A. Parangan to Clay I. Go and Jossie F. Go. (Ex. E to the Request for Judicial Notice.) The Recorder s Office fails to show any grant deed from Rolando DeGuzman or his representative to the Real Parties, creating a cloud on title. As a result of this irregularity, the Notices of Violation for those violations found at 137 Hahn were directed to Frederico Parangan. (Ex.s A to C of the Request for Judicial Notice.) Given this treatment of the property s title, an apparent lack of symmetry arises when a demolition permit was issued to Real Parties. Conclusion First, Henry Go s rights to procedural due process was violated when a demolition permit was issued allowing the destruction of the residential unit that is his dwelling without notice or hearing. State law recognizes that a tenant continues to have rights in a residential dwelling even if the building is red tagged. These statutory interests must be taken into consideration before due process can be satisfied. However, the permit process did not recognize the Tenants rights to Henry Go s Brief on Appeal Page 8

13 contest whether repair should be favored over demolition. As a result of these deficiencies, the demolition permit should be revoked because of this due process violation. Second, the local entity s issuance of a demolition permit for a residential unit without inquiry as to whether existing state law goal or statutes would be violated places the local procedures in conflict with state law, raising the issue of preemption DATED: October 9, 2014 Respectfully submitted, LAW OFFICES OF DENNIS ZARAGOZA Dennis Zaragoza Attorney for Appellant Henry Go Henry Go s Brief on Appeal Page 9

14 Dennis Zaragoza, Esq. (SBN ) LAW OFFICES OF DENNIS ZARAGOZA P.O. Box San Francisco, CA Telephone: (510) Attorney for Appellant Henry Go BOARD OF APPEALS CITY AND COUNTY OF SAN FRANCISCO HENRY GO, vs. Appellant, DEPARTMENT OF BUILDING INSPECTIONS, Respondent. CLAY GO and JOSSIE GO, I, Henry Go, declare: Real Parties in Interest. Permit No. 2014/06/11/8118 APPELLANT HENRY GO S DECLARATION IN SUPPORT OF REVOVATION OF PERMIT I am a resident of San Francisco, residing at 147 Hahn Street, and am the appellant to this appeal. Currently, I am 58 years of age, and as of January 2014, the State of California has recognized that I am disabled. I am receiving disability benefits from the state. These benefits are my sole source of income. 2. I have lived at 147 Hahn Street for over 10 years. Initially, I lived in the upper unit above the garage, renting a room from Frederico Parangan. 3. In or around November of 2011, I was told that Clay Go and his wife, Jossie Go, would be purchasing the house, and they wanted me to move out of the main house. Rather than Henry Go s Declaration in Support of Appeal Page 1

15 have me move out completely, they were going to fix up the storage area and the garage so that I could live there with my girlfriend, Grace P. Gonzalez. 4. In or around December 2011, we moved into this newly created downstairs unit. At the time that we moved in, this unit had no heater. This condition exists at the present time. Also, there is no kitchen sink. The only sink that is available for washing dishes is in the bathroom. There are no smoke detectors in this unit. The lighting is poor. The bathroom ventilation is poor resulting in mold. Additionally, electrical wires hang from the walls and ceilings. At one point, the bedroom window and the bathroom window were covered by plywood. Clay Go removed these coverings after August 7, In late 2013, the landlord, Clay Go, installed a double bolt lock for the back door leading to the backyard. As a result of this change, we did not have a key to this lock. We had no fire escape other than the front door near the garage door. 6. On August 7, 2014, I was informed and believe that Clay and Jossie go had obtained a demolition permit for my unit. Up to that point, I had not received any notice that they were going to apply for such a permit. I was not permitted a hearing to contest their right to receive this permit before it was issued to them. 7. Since that time, I have seen a copy of that permit, and recall that it was issued on August 6, 2014, the day before a mandatory settlement conference scheduled in an unlawful detainer action brought by Clay and Jossie Go against Grace P. Gonzalez and myself. I declare the foregoing to be true under penalty of perjury as to those matters stated of my own personal knowledge. As to those matters based on information and belief, I also believe those matters to be true under penalty of perjury. Executed this 8 th day of October, 2014, at San Francisco, California Henry Go Henry Go s Declaration in Support of Appeal Page 2

16 Dennis Zaragoza, Esq. (SBN ) LAW OFFICES OF DENNIS ZARAGOZA P.O. Box San Francisco, CA Telephone: (510) Attorney for Appellant Henry Go BOARD OF APPEALS CITY AND COUNTY OF SAN FRANCISCO HENRY GO, vs. Appellant, DEPARTMENT OF BUILDING INSPECTIONS, Respondent. CLAY GO and JOSSIE GO, Real Parties in Interest. I, Dennis Zaragoza, declare: Permit No. 2014/06/11/8118 DECLARATION OF DENNIS ZARAGOZA IN SUPPORT OF APPELLANT HENRY GO S APPEAL SEEKING REVOVATION OF PERMIT I am an attorney at law licensed to practice before the courts of this State, and am counsel for the appellant, Henry Go. 2. On August 7, 2014, a mandatory settlement conference was held in an unlawful detainer action brought by CLAY AND JOSSIE GO against HENRY GO and Grace P. Gonzalez. Up to the time of that conference, I had received no notice that the landlords would be seeking or did seek a demolition permit for the unit where HENRY GO and Grace P. Gonzalez resided. 3. After this conference ended, I went to the Department of Building Inspections to determine if a demolition permit had been issued for the lower unit at 147 Hahn. Based on my Declaration of Dennis Zaragoza in Support of Appeal Page 1

17 investigation, I learned that a permit had been issued to CLAY and JOSSIE Go on August 6, 2014, allowing the demolition of the unit where HENRY GO and Grace P. Gonzalez resided without prior notice or hearing. 4. As Exhibit A to the Request for Judicial Notice, I have attached a true and correct copy of page 1 of the Complaint Data Sheet, dated January 27, 2014, and the Notice of Violation, dated January 30, 2014 as received from the Department of Building Inspections. 5. As Ex. B to the Request for Judicial Notice, I have attached a true and correct copy of the Complaint Data Sheet, dated February 18, 2014, finding that the lower unit was likely an illegal unit. I received copies of these documents from the Department of Building Inspections. 6. As Ex. C to the Request for Judicial Notice, I have attached a true and correct copy of the Notice of Violation, dated May 21, 2014, again addressing conditions of the illegal lower unit. I obtained this document from the San Francisco Department of Building Inspections. 7. As Exhibit D to the Request for Judicial Notice, I have attached a true and correct copy of the Complaint Data Sheet, dated July 22, A copy of these documents was received from the San Francisco Department of Building Inspections. 8. As Exhibit E to the Request for Judicial Notice, I have attached a true and correct copy of the Complaint Data Sheet, dated July 25, 2014, and the Notice of Violation dated July 28, 2014, requiring various repairs to the illegal unit. A copy of these documents was received from the San Francisco Department of Building Inspections. 9. As Exhibit F to the Request for Judicial Notice, I have attached a true and correct copy of a grant deed, recorded on September 15, 2009, and produced from the Records of the City Recorder s office. 10. As Exhibit G to the Request for Judicial Notice, I have attached a true and correct copy of a grant deed recorded on December 7, 2011, relating to 147 Hahn Street, in which Frederico A. Parangan transfers his interest to Clay I. Go and Jossie F. Go. This document was printed from those records available to the public at the City and County of San Francisco Recorder s Office. 11. As Exhibit H to the Request for Judicial Notice, I have attached a true and correct copy of the permit that is the subject of this appeal. I would note that the copy has been reduced Declaration of Dennis Zaragoza in Support of Appeal Page 2

18 from legal size paper to letter size paper. A copy of this document was received from the San Francisco Department of Building Inspections. 12. I am informed and believe that Jossie Go has accepted a job as a resident manager of a hotel or motel. As a result of this employment, I am informed and believe that she and her husband, Clay Go, are no longer living at 147 Hahn Street. However, their current address is unknown. As I have not received any notice of a change of address, I will be required to serve the Real Parties in Interest at their last known address, 147 Hahn Street, San Francisco, CA. I declare the foregoing to be true under penalty of perjury as to those matters stated of my own personal knowledge. As to those matters based on information and belief, I also believe those matters to be true under penalty of perjury. Executed this 9 th day of October, 2014, at San Francisco, California Dennis Zaragoza Declaration of Dennis Zaragoza in Support of Appeal Page 3

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