Application for Temporary Restraining Order
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Pauline Abbott, Esq. (95309)
LAW OFFICES OF PAULINE ABBOTT
1234 Scenic Avenue, Suite 1206
Vista View, California 94555
510-555-1234
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Attorney for Plaintiff/Petitioner
Rental Housing Association
of Seaview County
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SUPERIOR COURT OF CALIFORNIA,
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COUNTY OF SEAVIEW
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RENTAL HOUSING ASSOCIATION
OF SEAVIEW COUNTY,
a California Corporation,
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Plaintiff/Petitioner,
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No.
EX PARTE APPLICATION FOR
TEMPORARY
RESTRAINING ORDER,
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF,
SUPPORTING DECLARATION
AND CERTIFICATE OF NOTICE
v.
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Defendants/Respondents.
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____________________________________/
CITY OF SEAVIEW, CITY
SEAVIEW CITY COUNCIL, CITY OF
SEAVIEW RESIDENTIAL RENT AND
RELOCATION BOARD,
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Ex Parte Application
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Plaintiff/Petitioner Rental Housing Association of Seaview County hereby applies for a
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temporary restraining order restraining defendants/ respondents City of Seaview, City of
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Seaview City Council, City of Seaview Residential Rent and Relocation Board and their agents,
servants, and employees, from any of the following actions during the pendency of this action:
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RHASC v. Seaview
Application for TRO
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Application for Temporary Restraining Order
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1. Enforcing City of Seaview Ordinance #67.9 N.S. in any way or form.
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2. Denying plaintiff/petitioner’s members and all Seaview landlords’ annual adjustments in
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violation of the constitutions of the State of California and the United States and
preventing landlords from receiving a fair return, and annual increases as required by
law.
3. Denying plaintiff/petitioner’s members and all Seaview landlords annual adjustments in
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violation of state law, which specifies the limits of local jurisdictions to impose penalties
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for service of section 1946 notices.
4. Denying plaintiff/petitioner’s members and all Seaview landlords rent increases to which
they are otherwise entitled.
5. Denying plaintiff/petitioner’s members and all Seaview landlords of the ability to take
prior rent increases that have been banked.
6. Denying plaintiff/petitioner’s members and all Seaview landlords of their rights under
California law to increase rents to subsequent tenants for two years all without notice as
required by law.
This application is made on the grounds that it appears that plaintiff/petitioners are entitled to
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the relief they seek in their complaint for restraining order and permanent injunctions against the
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defendants/respondents, that defendants/respondents’ actions during the pendency of this action
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and their wrongful conduct, unless and until enjoined and restrained by order of this Court, is
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causing and will cause great and irreparable injury to plaintiff/petitioner’s members and all
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Seaview landlords in that it is and will illegally deprive them of rent increases to which they are
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otherwise entitled, permanently deprive them of the ability to take prior rent increases that have
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been banked, deprive them of their rights under California law to increase rents to subsequent
____________________________
RHASC v. Seaview
Application for TRO
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Application for Temporary Restraining Order
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tenants for two years all without notice as required by law. Great and irreparable injury will
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result to plaintiff/petitioner’s members and all Seaview landlords before the matter can be heard
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on notice.
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Plaintiff/petitioner has not previously applied for to any judicial officer for similar relief or
describe previous application and the result of the application.
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This application is based on the complaint on filed herewith in this case, and on the
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declaration of plaintiff/petitioner’s attorney Pauline Abbott and the certificate of notice, both
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following this application, and on the attached memorandum of points and authorities.
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April 13, 2004
_________________________________
Pauline Abbott, Esq.
Attorney for Plaintiff/Petitioner Rental
Housing Association of Seaview County
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Memorandum of Points and Authorities
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The Facts
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Plaintiff/petitioner Rental Housing Association of Seaview County (“RHASC” and
“plaintiff”) is a California corporation doing business in Seaview, California. It has been in
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operation for about 60 years. RHASC is a trade association, made up of residential rental
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property owners. It currently has almost 1550 members, the vast majority of whom own
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rental property in Seaview. RHASC is a regional association affiliated with the California
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Apartment Association (“CAA”). The profile of a typical RHASC member is an older
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woman whose one to four rental units comprise a sole or major source of income. There are
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RHASC v. Seaview
Application for TRO
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Application for Temporary Restraining Order
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approximately 84,000 rental units in Seaview; RHASC members represent about 10,000 of
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those units.
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RHASC members that own Seaview rental property banked increases throughout the
1990s, since the housing market, vacancy rates and stagnant economy did not permit annual
rent increases. The average landlord banked seven years of increases during the 1990s.
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Most landlords in Seaview banked significant amounts of rent increases within the past 10
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years, and many have banked increases for 10 years that they have not yet taken.
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As a result, a large majority of Seaview landlords deferred maintenance and cut expenses,
or merely subsidized tenants to assure continuing occupancy. Within the past two years the
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vacancy rate has diminished, and the economy has improved, such that rents can be
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increased. Landlords were and are relying on banked increases to increase rents to make up
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for the lack of increases in the past ten years or more. Landlords are also relying on their
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ability to obtain rent increases for increased debt service, capital improvements and other
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expenses as they purchase, improve, and re-rent their units.
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At all times relevant herein, respondents have been and are the City of Seaview, and its
governing body, the City of Seaview City Council, and the City of Seaview Housing
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Residential Rents and Relocation Board (aka Residential Rent Arbitration Board, hereinafter
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“Board”), which is the agency charged with administering the provisions of the City of
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Seaview Residential Rent Arbitration Ordinance.
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Virtually all of the Seaview units owned by RHASC members are subject to the City of
Seaview Residential Rent Arbitration Ordinance.
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On April 25, 2004 defendants City of Seaview and City Council amended the (rent law
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name), ordinance number 67.9 N.S.. A copy is attached hereto by reference and incorporated
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RHASC v. Seaview
Application for TRO
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Application for Temporary Restraining Order
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as if set forth in full. The ordinance purports to have gone into effect on May 1, 2004. The
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Ordinance is in part self-enforcing since lack of compliance is a defense to unlawful
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detainers against tenants to whom such notices have been served.
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Ordinance #67.9 requires landlords of Seaview properties to file all notices given
pursuant to CC section 1946 with defendant HRRRB within 10 days of service on the tenant.
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It prohibits landlords who do so from resetting the rents on vacancy, and of increasing the
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rents of annual rent adjustments and banked increases for two years. It permits landlords to
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petition for increases for capital improvements, uninsured repair costs, increased debt service
and other reasons set forth in section 27 of the Ordinance.
The denial of annual adjustments violates the constitutions of the State of California and
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the United States in that it prevents landlords from receiving a fair return, and annual
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increases as required by law.
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The denial of annual adjustments violates state law, which specifies the limits of local
jurisdictions to impose penalties for service of section 1946 notices.
Plaintiff is informed therefore alleges that defendant/respondent HRRRB has a backlog
of decisions which have not yet been issued for hearings held in and decided on the record in
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September 2003, and that any landlord filing a petition in May 2004 will not have a hearing
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on that petition for at least a year, such that no decision would be issued for another year, at
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which time a landlord or tenant could appeal the decision to the HRRRB. Plaintiff is
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informed that the ordinance will greatly increase the numbers of petitions filed with the
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HRRRB, causing yet further delay. Such delay is a violation of the rights of landlords to
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their annual adjustments and other increases. It also interferes with the rights of landlords to
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____________________________
RHASC v. Seaview
Application for TRO
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Application for Temporary Restraining Order
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contract, since landlords will have to choose between petitioning the HRRRB for increases
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and re-renting their units as illegally depressed rents.
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The Ordinance also cannot be applied since the HRRRB has failed to develop the forms
necessary for landlord compliance. Until such notices have been developed for landlord use,
landlords are prevented from complying with the Ordinance, and effectively precluded from
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prosecuting unlawful detainer actions. Landlords are also precluded from compliance
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because the HRRRB has failed to adopt rules to protect tenant privacy as required by the
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Ordinance, leaving landlords vulnerable to tenant claims of invasion of privacy as landlords
comply with the Ordinance, such as distributing notices of termination to prospective tenants,
posting them in units, and filing them in public files in the rent board.
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The denial of annual adjustments to all landlords filing section 1946 notices is ambiguous
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since its language is contrary to the explicitly stated legislative intent of the Council members
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who voted to adopt the amendment.
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I. PLAINTIFF/PETITIONER IS ENTITLED TO INJUNCTIVE RELIEF.
Plaintiff demanded that the defendant/respondents City of Seaview and City Council reject
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the Ordinance, but they refused. It has since requested of each Council member that the
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Ordinance be amended to delete these illegal and void provisions, but the Council members have
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refused. The measure was ostensibly in effect seven days after passage.
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It is essential that the Court grant the relief requested to protect plaintiff’s members and all
Seaview landlords from the enforcement of this Ordinance.
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Defendants/respondents' wrongful conduct, unless and until enjoined and restrained by order
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of this Court, is causing and will cause great and irreparable injury to plaintiff’s members and all
____________________________
RHASC v. Seaview
Application for TRO
6
Application for Temporary Restraining Order
1
Seaview landlords in that it is and will illegally deprive them of rent increases to which they are
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otherwise entitled, permanently deprive them of the ability to take prior rent increases that have
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been banked, deprive them of their rights under California law to increase rents to subsequent
4
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tenants for two years all without notice as required by law.
Plaintiff has no adequate remedy at law for the injuries currently being suffered in that the
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amendment is ostensibly law and is being enforced and self-enforced.
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In pertinent part, CCP section 526 authorizes injunctive relief:
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(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded,
and the relief, or any part thereof, consists in restraining the commission or continuance
of the act complained of, either for a limited period or perpetually.
(2) When it appears by the complaint or affidavits that the commission or continuance of
some act during the litigation would produce waste, or great or irreparable injury, to a
party to the action.
(3) When it appears, during the litigation, that a party to the action is doing, or threatens,
or is about to do, or is procuring or suffering to be done, some act in violation of the
rights of another party to the action respecting the subject of the action, and tending to
render the judgment ineffectual.
(4) When pecuniary compensation would not afford adequate relief.
(5) Where it would be extremely difficult to ascertain the amount of compensation that
would afford adequate relief.
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In this case, RHASC is entitled to relief under all subsections of CCP section 576.
Therefore the Rental Housing Association of Seaview County is entitled to a temporary
restraining order, as well as preliminary and permanent injunctions to protect their rights.
____________________________
RHASC v. Seaview
Application for TRO
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Application for Temporary Restraining Order
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Moreover, there will be no harm to defendants/respondents if Ordinance #67.9 is not enforced
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for the duration of this action.
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Plaintiff/Petitioner’s TRO must be granted.
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April 13, 2004
_________________________________
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Pauline Abbott, Esq.
Attorney for Plaintiff/Petitioner Rental
Housing Association of Seaview County
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Declaration of Pauline Abbott Supporting Ex Parte Application
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I, Pauline Abbott, declare that
1. I am an attorney at law licensed to practice in all of the Courts of the state of California and I
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am the attorney of record for Rental Housing Association of Seaview County, plaintiff
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herein, and have personal knowledge of each of the facts set forth in this Declaration, and
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can testify competently thereto.
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2. Plaintiff/petitioner Rental Housing Association of Seaview County (“RHASC” and
“plaintiff”) is a California corporation doing business in Seaview, California. It has been
in operation for about 60 years. RHASC is a trade association, made up of residential
20
rental property owners. It currently has almost 1550 members, the vast majority of whom
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own rental property in Seaview. RHASC is a regional association affiliated with the
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California Apartment Association (“CAA”). The profile of a typical RHASC member is
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an older woman whose one to four rental units comprise a sole or major source of
income. There are approximately 84,000 rental units in Seaview; RHASC members
represent about 10,000 of those units.
____________________________
RHASC v. Seaview
Application for TRO
8
Application for Temporary Restraining Order
1
3. RHASC members that own Seaview rental property banked increases throughout the
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1990s, since the housing market, vacancy rates and stagnant economy did not permit
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annual rent increases. The average landlord banked seven years of increases during the
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5
1990s. Most landlords in Seaview banked significant amounts of rent increases within
the past 10 years, and many have banked increases for 10 years that they have not yet
6
taken.
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4. As a result, a large majority of Seaview landlords deferred maintenance and cut expenses,
8
9
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or merely subsidized tenants to assure continuing occupancy. Within the past two years
the vacancy rate has diminished, and the economy has improved, such that rents can be
11
increased. Landlords were and are relying on banked increases to increase rents to make
12
up for the lack of increases in the past ten years or more. Landlords are also relying on
13
their ability to obtain rent increases for increased debt service, capital improvements and
14
other expenses as they purchase, improve, and re-rent their units.
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17
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5. At all times relevant herein, respondents have been and are the City of Seaview, and its
governing body, the City of Seaview City Council, and the City of Seaview Housing
Residential Rents and Relocation Board (aka Residential Rent Arbitration Board,
hereinafter “Board”), which is the agency charged with administering the provisions of
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the City of Seaview Residential Rent Arbitration Ordinance.
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6. Virtually all of the Seaview units owned by RHASC members are subject to the City of
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Seaview Residential Rent Arbitration Ordinance.
7. On March 25, 2004 defendants City of Seaview and City Council amended the (rent law
24
name), ordinance number 67.9 N.S.. A copy is attached hereto by reference and
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incorporated as if set forth in full. The ordinance purports to have gone into effect on
____________________________
RHASC v. Seaview
Application for TRO
9
Application for Temporary Restraining Order
1
May 1, 2004. The Ordinance is in part self-enforcing since lack of compliance is a
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defense to unlawful detainers against tenants to whom such notices have been served.
3
4
5
8. Ordinance #67.9 requires landlords of Seaview properties to file all notices given
pursuant to CC section 1946 with defendant HRRRB within 10 days of service on the
tenant. It prohibits landlords who do so from resetting the rents on vacancy, and of
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increasing the rents of annual rent adjustments and banked increases for two years. It
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permits landlords to petition for increases for capital improvements, uninsured repair
8
9
10
costs, increased debt service and other reasons set forth in section 27 of the Ordinance.
9. The Ordinance also cannot be applied since the HRRRB has failed to develop the forms
11
necessary for landlord compliance. Until such notices have been developed for landlord
12
use, landlords are prevented from complying with the Ordinance, and effectively
13
precluded from prosecuting unlawful detainer actions. Landlords are also precluded from
14
compliance because the HRRRB has failed to adopt rules to protect tenant privacy as
15
required by the Ordinance, leaving landlords vulnerable to tenant claims of invasion of
16
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privacy as landlords comply with the Ordinance, such as distributing notices of
termination to prospective tenants, posting them in units, and filing them in public files in
18
the rent board.
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10. The denial of annual adjustments to all landlords filing section 1946 notices is ambiguous
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since its language is contrary to the explicitly stated legislative intent of the Council
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members who voted to adopt the amendment.
11. Plaintiff demanded that the defendant/respondents City of Seaview and City Council
reject the Ordinance, but they refused. It has since requested of each Council member
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RHASC v. Seaview
Application for TRO
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Application for Temporary Restraining Order
1
that the Ordinance be amended to delete these illegal and void provisions, but the Council
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members have refused. The measure was ostensibly in effect seven days after passage.
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12. Plaintiff has no adequate remedy at law for the injuries currently being suffered in that
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the amendment is ostensibly law and is being enforced and self-enforced.
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The above facts are within my personal knowledge and I am competent to testify to their truth if
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called as a witness. I declare under penalty of perjury under the laws of the State of California
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that the foregoing is true and correct.
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April 13, 2004
_________________________________
Pauline Abbott
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Certificate of Notice
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I, Pauline Abbott, declare that:
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1. I am an attorney at law duly admitted to practice before all the courts of the State of California
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and the attorney of record herein for plaintiff/petitioner in this action.
2. On April 12, 2004 I telephoned the City Attorney of Seaside, attorney for defendants, and
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related the time, place and relief sought in this application. Later that day I faxed her this ex
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parte application. I declare under penalty of perjury under the laws of the State of California that
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the foregoing is true and correct.
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April 13, 2004
_______________________________
Pauline Abbott
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RHASC v. Seaview
Application for TRO
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