An all too familiar story took place at San Francisco’s civil
courthouse last week: a Superior Court judge ignored California law to
evict a tenant who lived in her home for 33 years and uses a
wheelchair. This practice of “judicial nullification” arose in the
trial of longtime Sunset District activist Susan Suval, who was evicted
under the Ellis Act despite the landlord entering into a contract with
the city to keep her rental unit affordable until 2010. The judicial
abuse in Suval’s case will be detailed below. But it is all too
typical. In case after case, San Francisco judges refuse to follow laws
protecting tenants, substituting their personal property rights agendas
for settled laws and legal precedents. Tenants are routinely denied
their constitutional right to jury trials, and when judges cannot avoid
having a case get to the jury, they do their best to eliminate any
discretion for jurors to rule in the tenants’ behalf. San Francisco is
a pro-tenant city with an anti-tenant judiciary – and changing this
dynamic is long overdue.
The Suval case provides a striking example of this
judicial bias. Attorney and real estate agent Mark O’Flynn bought the
property where Susan Suval and her family have lived for over 30 years.
In 2005, O’Flynn obtained $27,000 from the City as part of a lead
abatement program. Under the program, the City grants funds to
qualified property owners who rent to low-income families to do lead
abatement work. In exchange, the owner agrees to continue renting to
low-income tenants for five years, or to repay the money (See Randy
Shaw’s story below on the need to change such programs)
O’Flynn gladly took the City’s money, but then began a campaign
designed to throw the Suvals out of their home. First, he evicted them
for what was supposed to be less than 90 days to do lead abatement
work, but three months turned into approximately six months, and it
became clear that he didn’t want the Suvals to return. When they
insisted and moved back in, they found that O’Flynn had remodeled the
bathroom in such a way as to make it inaccessible to Suval who uses a
wheelchair, a condition he wouldn’t fix for about eight months.
Next, in 2006, O’Flynn claimed he wanted to move into the property, an
absurd claim for many reasons, including the fact that he had recently
purchased a house on the ocean in Daly City that he claimed would be
his residence. The case went to trial. A jury of six property owners
and six tenants ruled 11-1 in favor
of Suval, finding that O’Flynn was not acting in good faith. Jurors in
the case explained afterwards that they thought O’Flynn was a liar.
Having failed to drive out Suval in these prior eviction efforts,
O’Flynn invoked the Ellis Act. The Act allows a landlord to evict all
tenants at a property if the landlord intends to remove all of the
units from the rental market. In other words, to prevail O’Flynn would
need to establish that he was going to stop renting the two units on
the property.
But O’Flynn’s 2005 agreement with the city should have precluded any
such eviction. O’Flynn had agreed: “The property will remain rented to
persons who are low and moderate income as defined by the Department of
Housing and Urban Development (HUD) for a period of five (5) years from
the date of signature of this Agreement. Owner may choose to opt out of
this requirement at an earlier date by paying back to the City the
entire grant amount $27,215.00.”
Pursuant to the Agreement, the City provided a grant of $27,215.00 to
cover expenses associated with lead abatement at the subject property.
To date, O’Flynn has not paid the city back. Therefore, he remains
obligated to continue renting the property to tenants, an obligation
totally inconsistent with his using the Ellis Act to evict.
Under these circumstances, why would a landlord even bother moving
forward with an eviction case that would seem doomed to failure? The
answer lies in the confidence that landlords have in the ultimate bias
of many SF Superior Court judges who will follow their own beliefs
about property rights rather than the law.
At trial on the Ellis eviction last week, the trial judge prohibited
Suval from even introducing evidence to the jury of the contract with
the city. The jury never even heard that despite claiming grounds to
evict to get out of the rental business, O’Flynn had already committed
to continue renting the property through 2010. No reasonable jury would
have evicted the Suvals had they known of this evidence.
The Ellis Act is bad enough as written. But SF Superior Court judges
seem determined to rewrite the Act for the benefit of landlords, even
if it means ignoring Court of Appeal or California Supreme Court
precedent that these Superior Court judges are required to follow. A
recent Court of Appeal decision makes clear that the Act does not trump
agreements landlords have with the City to keep renting. A recent
Supreme Court decision provides that a landlord’s intent (i.e., whether
the landlord really intends to get out of the rental business) is
relevant in an Ellis Act eviction. Under these precedents, there is no
conceivable basis for excluding the evidence of O’Flynn’s agreement
with the City to keep renting the property.
Suval will appeal. Unlike ordinary appeals that go to a separate
appeals court, eviction appeals end up in the Appellate Division of the
Superior Court, which is a panel of SF Superior Court judges. It is now
up to the Appellate Division to follow the law. A low-income family’s
housing depends on it, as does the credibility of the SF Superior Court.
Suval’s case comes less than a year after a different San Francisco judge denied Jose Morales a jury trial in his long battle
against his landlord. The fact that judges feel comfortable twisting
the law for unsympathetic landlords at the expense of elderly and
disabled tenants shows that in San Francisco, no tenant facing eviction
can count on a fair trial.
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