Extrapolating Rent Control

In the City of San Diego an ordinance was enacted in 2004 entitled the “Tenant’s Right to Know.” Found at 98.0701 of the San Diego Municipal Code, the preamble states that its purpose is to “promote stability in the San Diego rental housing market and [to] limit adverse impacts on long-term residential tenants displaced and forced to find replacement housing in the expensive and limited San Diego housing market.”

The law provides that tenants who reside in San Diego and who have been in the same rental unit for more than two years are protected against unjust or unreasoned evictions. As such, a tenant could conceivably remain indefinitely in the same rental unit so long as they adhere to the terms of their rental agreement, including the timely payment of rent. There are nine exceptions to this rule, of course, that include infractions by the tenant such as being a nuisance, illegal use of the apartment, or refusal to renew the lease agreement for a term equal to the original.

It is this last provision, being the tenant’s obligation to renew the lease, after receiving a written request from their landlord, “for a further term of like duration with similar provisions” in which the potential for a quasi rent control protection may exist.

In the eight years since this law was enacted there have been no appellate level cases brought by residential tenants that have tested the strength or scope of this Code section. To the extent that retaliation could be at issue, Rich v. Schwab, 63 Cal.App.4th 803 (1998) said of Bartela v. Superior Court (1981) 30 Cal.3d 244, 249, 178 Cal.Rptr. 618, 636 P.2d 582 that: “The retaliatory eviction doctrine is founded on the premise that ‘[a] landlord may normally evict a tenant for any reason or for no reason at all, but he may not evict for an improper reason…”

In the scheme of the San Diego Municipal Code, it seems that a perfect loophole exists for landlords to rid themselves of long-term tenants that they no longer desire. By simply increasing the tenant’s rent to an amount that is disproportionate, an eviction is materially imposed. With the absence of stronger language in the Code to address this scenario, a tenant’s best defense may lie within Subpart E of Section 98.0730. To renew the lease for a “further term of like duration” and “with similar provisions” would be to renew a one-year lease for an additional one-year term and with a rental figure that is similarly consistent with that of before. The adjective similar seems to leave room for a reasonable increase of, say $50, but not for the disproportionate imposition of, say $200.

Call Recordings as Evidence

Laws for the recording of telephone conversations vary by state, with a handful of states requiring that all parties to the conversation consent to the recording. If a recording is made or obtained without the consent of all parties, in those two-party states, then criminal and civil sanctions may apply.

California is a two-party state. In Penal Code 631, for example, recording a telephone conversation without the required consent is punishable by a fine of up to $2,500, up to one year in the county jail, or both. But what if the recording that was procured illegally could serve as evidence that, in a civil trial, a witness is lying? For this, there are two cases from within California that establish a more realistic set of evidentiary boundaries.

In the matter of Frio v. Superior Court (1988) 203 Cal.App.3d 1480, the court ruled that a witness cannot perjure themselves and then claim the exclusionary protections of the California Penal Code. “The repugnance of an opportunity for a witness who was recorded to lie in this situation is akin to the circumstance of a criminal defendant who testifies at variance with an earlier statement ruled inadmissible because of a violation of Miranda.” In this case, however, Richard Frio used a recording not as direct impeachment evidence against a witness, but instead as a tool to refresh his recollection of a telephone conversation he had with the defendant. His testimony, of course, differed in factual substance to the information that was proffered by the other party. Referring to the notes that Mr. Frio drafted using the audio recording, the court ruled that, “The truth finding function of trial, already strained by the exclusion of the writings themselves, should not be burdened further by the presentation of evidence through witnesses who may lie with impunity.”

Then, in the case of People v. Crow (1994) 28 Cal.App.4th 440, it was determined, consistent with the finding in Frio v. Superior Court, that “Evidence of confidential conversations obtained by eavesdropping or recording in violation of section 632 is generally inadmissible in any proceeding (§ 632, subd. (d)), but can be used to impeach inconsistent testimony by those seeking to exclude the evidence.”

What these cases fail to address are the consequences, if any, that the party who made or illegally obtained the recording will face after revealing its existence. Because it is the court that is facilitating the inclusion of these recordings as evidence, however, it is probable that exoneration from any related sanctions would logically follow.

As always, it is best to notify all of the parties to a recorded conversation that it is being recorded. For those instances when the conversation may be hindered as a result of this disclosure, then perhaps a tactical approach such as this is necessary.

Arrests, Not Convictions

It isn’t often that employers are prohibited from considering factors in hiring and retention scenarios that go beyond the protected classes that are provided for in various federal laws. In California, however, there is a unique distinction that favors employees and their wherewithal to avoid convictions by opting for a jury acquital, dismissal, or diversionary program.

In Section 432.7 (a) of the California Labor Code it states that no employer shall “ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in [a] conviction.” It goes on to state that “nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment…any record of arrest or detention that did not result in a conviction.”

If an employee or potential employee opted to accept an offer, such as deferred adjudication, wherein charges are dismissed after a predetermined period of time, that charge too an employer would be prohibited from considering. Penal Code Section 1001.9 Subpart A states, in part, that “upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred.” Furthermore, in Subpart B, it states that “an arrest resulting in successful completion of a diversion program shall not…be used in any way that could result in the denial of any employment.”

By seeking or disseminating information concerning charges that did not result in a conviction, there is also a breach of privacy per Section 1 of Article 1 of the California Constitution. Pitman v. City of Oakland (1988) 197 Cal. App. 3d 1037 said of Central Valley Ch. 7th Step Foundation, Inc. v. Younger (1989) 214 Cal. App. 3d 145, that there are “three distinct elements” that make up “the privacy cause of action in Central Valley.” Those elements include: “(1) The dissemination of arrest records containing non[-]conviction data, [by] (2) public employers who are prohibited by law from considering a record of an arrest [and for charges] (3) which did not result in a conviction.”

In determining damages if an employee was not offered employment or if their existing employment relationship was adversely affected in any way, the Labor Code provides for a statutory penalty of $500 and Piutau v. Federal Express Corp., Not Reported in F. Supp. 2d. (2003) provides for both economic and non-economic damages. Economic damages would include lost wages and non-economic damages pain and suffering.

The Fair Housing Act

Title VIII of the Civil Rights Act of 1968 (Fair Housing Act) prohibits discrimination in the sale, rental, and financing of dwellings based on race, color, religion, gender, familial status, disability, age, or national origin. This Act, does not, however, prohibit considerations that may be given to a tenant by a landlord such as a reduction in rent to incentivize renewal of a lease agreement, holding a unit open until a qualifying tenant can take occupancy, or working with a delinquent tenant so that tenancy can be sustained.

In consideration of these classes of protected persons, there are two primary methods for measuring any disparity in the selection or ongoing consideration of applicants. The first method is disparate treatment. Disparate treatment is the treatment of an individual that is less favorable than the treatment of others for discriminatory reasons. For example, if a landlord receives two applications for an apartment and both of the applicants are equally qualified but the landlord intentionally rejects the application from the prospective Asian tenant and accepts the application from the prospective physically disabled tenant, unlawful discrimination has just occurred based on race. Of course if the reason for rejecting the first application was for a reason other than the applicant’s race, those mitigating circumstances would outweigh the landlord’s obligation to give further consideration to that applicant.

The second method is disparate impact. Disparate impact, unlike disparate treatment, focuses on the landlord’s rental policies and how they may constructively exclude certain applicants categorically by way of their design moreover than the individual outcome of each applicant’s application. For example, if a landlord were to create a company policy that only applicants with the last name of Smith would be accepted and Smith is the last name of only those persons born in Uruguay, then this policy would violate the Act as it discriminates on the basis of national origin. Although if this policy was designed in the least restrictive way and used to further a compelling business purpose; it may be upheld.

The Act merely prohibits discrimination in housing practices, not the practices themselves. So long as it can be shown that any decision made was not influenced by an overt preference for or against someone because of a characteristic or circumstance that is protected by the Act, decisions on how to run a successful business are left to the landlord.

Every Minute, Entry to Exit

I previously held a position with a company that provided food and beverages to patrons at a football stadium. Whenever working in the stadium, employees were required to wear a company-issued uniform. This uniform was provided before each shift and we were required to report about twenty minutes early to change into it everyday. After the shift was finished, we were also required to undress from the uniform and back into our personal clothing.

The principle concept in all employment relationships is that for every minute we are engaged in a work-related activity, we are to be paid. This concept is best embodied by the Portal-to-Portal Act of 1947 (Portal Act) wherein it mandates employers to compensate their employees for time worked that is “compensable under contract, custom, or practice” regardless of whether it is “preliminary or postliminary” to a scheduled shift. Literally, from the time that we enter the “portal” to the time that we leave it, we are to be paid.

In addition to the Portal Act, the Fair Labor Standards Act (FLSA), which is encompassed entirely by Title 29 of the U.S. Code, states in Chapter V, Part 785.11, Subpart C that, “Work not requested but suffered or permitted is work time.” In the Supreme Court case of Steiner v. Mitchell, 350 U.S. 247 (1956), it was determined that any activity which is “integral” to work is also compensable.

In my scenario, where the uniform was provided on site and employees were required to change into and out of it there, time spent performing this activity was compensable. If, however, the employee can change into their uniform before arriving to the worksite, then according to the recently decided case of Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir. 2010), “these activities are not integral…and therefore uncompensable.” The distinguishing factor here is whether or not it is required by the employer that the donning and doffing of a uniform be done “on the employer’s premises.”

Whether time is spent meeting with a colleague before work to discuss a project, taking a business call during your lunch break, or driving between company sites, for example, all time that is spent engaged in work is time that you must be compensated for.