Judge: Mary H. Strobel, Case: 21STCP00200, Date: 2022-09-15 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP00200    Hearing Date: September 15, 2022    Dept: 82

            Petitioner Terri Johnson (“Petitioner”) petitions for a writ of ordinary mandate directing Respondent City of Lynwood (“Respondent” or “City”) “to permit [Petitioner] to have her tenants put their names on the water bill generated by the City of Lynwood for the property located at 11229 Elm Street, Lynwood, California 90262.”  (Pet. Prayer ¶ 5.) 

Judicial Notice

Petitioner’s Request for Judicial Notice (“RJN”) Exhibit 1 – Granted

Background and Procedural History

            Petitioner owns a single-family rental home located at 11229 Elm Street, City of Lynwood, CA (the “Property”).  (Johnson Decl. ¶ 2.) 

From the mid-1990s until April of 2018, when Petitioner’s last tenant moved out, the City of Lynwood billed Petitioner’s tenants directly for water services and waste/rubbish services. If her property was vacant, Petitioner would temporarily transfer the water services and waste/rubbish services to her name, and when her property was rented again, Petitioner’s new tenant would open a billing account for water services and waste/rubbish with the City of Lynwood, or through its designee, and be billed directly for the water services and waste/rubbish services by the City of Lynwood or its designee.  (Id. ¶ 4.)

In 2014, the City adopted Ordinance No. 1670, which enacted, in part, Municipal Code section 14-1.13. Section 14-1.13 provides, in pertinent part, as follows:

Connection Authorized: The public works department shall cause to be connected with the city’s water system the service line of any property abutting on a city water main after the property owner or his or her agent complies with all of the following provisions of this section:

a. Water Service Agreement: The property owner, other than a developer, fills out, signs and files with the city finance department a water service agreement approved by the city manager and the city attorney. 

(Pet. Exh. 1.)

Respondent submits the Application for Water Services form that it uses for the purpose of placing water services in the name of the owner of the real property where the services will be provided by the City. (Medellin Decl. ¶ 3, Exh. A.)  By signing the agreement, the real property owner agrees “to abide by all Rules and Regulations established by the Lynwood Municipal Code.”  (Ibid.) 

In this action, Petitioner deposed Miguel Angel Cervantes, Billing and Collections Supervisor for the City of Lynwood.  (Medellin Decl. ¶ 4, Exh. B.)  According to Cervantes’ sworn testimony, the amendments to Section 14-1.13 in 2014 were not initially enforced by the City upon their enactment. However, in or around May 2017, the City began enforcing the requirement that all new water services sign-ups were opened by the property owners per the Municipal Code. Since then, the City has not made any exceptions to the requirement that water services be placed in the name of the property owner.   However, existing accounts that had been opened by tenants were grandfathered in and would not be required to be changed until a new sign-up was needed.  (Id. Exh. B at 8-11.) 

On or around April 5, 2018, Petitioner’s then-tenant vacated the Property.  Petitioner requested that the City place the water services for the Property in her name on a temporary basis.  Petitioner was informed that she would no longer be allowed to place the water services in her name on a temporary basis, as had previously been the case, and that the water services would need to remain in her name on a go-forward basis.  The City provided Petitioner with a copy of Section 14-1.13 as the basis for the change in policy.   (Opening Brief (“OB”) 1-2; Johnson Decl. ¶¶ 5-13.)

On January 25, 2021, Petitioner filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief.  Respondent answered, and Petitioner filed a replication to the answer.

            On April 29, 2022, Petitioner filed her opening brief in support of the petition.  The court has received Respondent’s opposition, Petitioner’s reply, and the evidence filed with the parties’ legal briefs.

            On September 12, 2022, three days before the hearing on the writ petition, Respondent filed a declaration of Miguel Cervantes.  On September 14, 2022, the day before the hearing, Respondent filed a declaration of Maria Quinonez.  Respondent did not request or receive leave of court to file additional papers or explain why it filed this evidence three days and one day before the hearing.  The court does not consider these declarations. 

Standard of Review

The petition for writ of mandate is brought pursuant to CCP section 1085.  There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where … the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’”  (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)  

Petitioner bears the burden of proof and persuasion in a mandate proceeding brought under CCP section 1085. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)  An agency is presumed to have regularly performed its official duties.  (Evid. Code § 664.)  A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) 

Analysis

Section 14-1.13 Requires Water Service Agreement Executed by the Property Owner

Petitioner first contends that “Lynwood Municipal Code 14-1 does not contain any rules expressly limiting the billing of water service and waste/rubbish service charges to residential property owner.”  (OB 3-4.)  Section 14-1.13 expressly conditions a water connection by the public works department on the property owner’s execution of a “water service agreement.” Respondent has presented evidence that the City interprets this provision to require the owner to enter into an agreement regarding water services not only for the original water connection, but also for provision of ongoing water services.  Section 14-1.13 does not authorize the public works department to connect water service at the request of tenants.  (See also Medellin Decl. Exh. B [Cervantes testimony].)  Giving deference to Respondent’s interpretation of its ordinance, Petitioner has not developed an argument that Respondent’s interpretation is erroneous as a matter of law.

Does Public Utilities Code Section 10009.6 Preempt Municipal Code Section 14-1.13? 

Petitioner next contends that “the City of Lynwood’s actions violate the State of California Public Utilities Code § 10009.6. which preempts Lynwood Municipal Code 14-1.”  (OB 4.) 

Rules of Preemption

“‘Under article XI, section 7 of the California Constitution, '[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.' If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.  A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. Local legislation is 'duplicative' of general law when it is coextensive therewith.  Similarly, local legislation is 'contradictory' to general law when it is inimical thereto. Finally, local legislation enters an area that is 'fully occupied' by general law when the Legislature has expressly manifested its intent to 'fully occupy' the area, or when it has impliedly done so in light of one of the following indicia of intent: '….”  (San Diego Gas & Electric Co. v. City of Carlsbad (1998) 64 Cal.App.4th 785, 792-793.)

Courts “have been particularly ‘reluctant to infer legislative intent to preempt a field covered by municipal regulation when there is a significant local interest to be served that may differ from one locality to another.’”  (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1149.)   “‘The common thread of the cases is that if there is a significant local interest to be served which may differ from one locality to another then the presumption favors the validity of the local ordinance against an attack of state preemption.’ ”  (Ibid.)

“The question whether an actual conflict exists between state law and charter city law presents a matter of statutory construction.”  (City of El Centro v. Lanier (2016) 245 Cal.App.4th 1494, 1505.)  “The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.”  (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.) 

“The party claiming that general state law preempts a local ordinance has the burden of demonstrating preemption.”  (Big Creek Lumber Co., supra, 38 Cal.4th at 1149.) 

Does Section 10009.6 Conflict With Section 14-1.13? 

To decide Petitioner’s preemption claim, the court must construe Public Utilities Code section 10009.6 and also Government Code section 53064.5, which is cited in opposition.

Section 10009.6 provides, in relevant part:

(a) The decision of a public utility to require a new residential applicant to deposit a sum of money with the public utility prior to establishing an account and furnishing service shall be based solely upon the creditworthiness of the applicant as determined by the public utility.

(b) No municipal corporation owning or operating a public utility furnishing services for residential use to a tenant under an account established by the tenant shall seek to recover any charges or penalties for the furnishing of services to, or for the tenant's residential use from, any subsequent tenant or the property owner due to nonpayment of charges by a previous tenant…. The municipal corporation may collect a deposit from the tenant service applicant prior to establishing an account for the tenant. The municipal corporation may not require that service to subsequent tenants be furnished on the account of the landlord or property owner unless the property owner voluntarily agrees to that requirement, nor may the municipal corporation refuse to furnish services to a tenant in the tenant's name based upon the nonpayment of charges by a previous tenant.

(bold italics added.) 

A “public utility,” as used in section 10009.6, means “the supply of a municipal corporation alone or together with its inhabitants, or any portion thereof, with water, light, heat, power, sewage collection, treatment, or disposal for sanitary or drainage purposes ….”  (Pub. Util. Code § 10001.)  “Any municipal corporation may acquire, construct, own, operate, or lease any public utility.”  (Id. § 10002.) 

Respondent contends that there is no conflict between section 10009.6 and section 14-1.13 because “Section 10009.6 applies to situations where the municipal corporation (1) is seeking to recover for nonpayment of charges (2) by a previous tenant.”  (Oppo. 6.)  The plain language of section 10009.6(b), first sentence, supports this interpretation of the statute.  Case law also supports this interpretation of section 10009.6.  “Section 10009.6 prohibits a municipal corporation which operates a public utility from recovering the overdue amounts which a tenant has contracted to pay from either a property owner or a subsequent tenant.”  (California Apartment Assn. v. City of Stockton (2000) 80 Cal.App.4th 699, 705 [bold italics added]; see also Casteel v. County of San Joaquin (2005) 134 Cal.App.4th 918, 923 [same].)  Thus, as discussed in this case law, an important purpose of section 10009.6 is to ensure that a property owner or subsequent tenant is not required to pay for utility services for which the prior tenant “contracted to pay.”

As Respondent states, Petitioner does not submit any evidence that Respondent has required her to place water services in her name on a go-forward basis because of the nonpayment of charges for which a prior tenant “contracted to pay.”  (Oppo. 6-7; Johnson Decl. generally; see also Medellin Decl. Exh. B at 8-11.)  Petitioner does not show any conflict between section 10009.6 and section 14-1.13, as applied in this case, with respect to the prohibition in section 10009.6 against a municipal corporation seeking to recover from the property owner the overdue utility payments that a tenant has contracted to pay. 

However, Petitioner’s preemption claim is based on the following sentence in section 10009.6(b): “The municipal corporation may not require that service to subsequent tenants be furnished on the account of the landlord or property owner unless the property owner voluntarily agrees to that requirement ….”  (OB 4:3-9; Johnson Decl. ¶ 13.  This sentence suggests that the requirement in section 14-1.13 that the property owner execute a “water service agreement” instead of a tenant (at least after the original water connection) is prohibited by state law.  The court tentatively finds this interpretation to be more reasonable than Respondent’s interpretation.  It gives effect to the plain language of the statute without adding or subtracting words.  “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.”  (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.) 

Respondent does not directly address that statutory language from section 10009.6(b) in opposition, but instead cites to Government Code section 53064.5.  (Oppo. 6-7.)   Government Code section 53064.5 provides in full: “No local agency furnishing water for residential use to a tenant shall seek to recover any charges or penalties for the furnishing of water to or for the tenant's residential use from any subsequent tenant on account of nonpayment of charges by a previous tenant. The local agency may, however, require that service to subsequent tenants be furnished on the account of the landlord or property owner.”  (bold italics added.)  Section 53064.5 is part of Title 5, Division 1 of the Government Code.  “‘Local agency’ as used in this division means county, city, or city and county, unless the context otherwise requires.”  (Gov. Code § 50001.) 

Section 53064.5 is a state law that expressly permits a city that “furnishes water for residential use” to require that service to subsequent tenants “be furnished on the account of the landlord or property owner.”  Thus, section 53064.5 authorizes the billing and contractual arrangement at issue in section 14-1.13.  (See Miller & Starr, Cal. Real Estate 4^th, ¶ 34:73 [citing section 53064.5 and stating “The local utility agency may require that service to subsequent tenants be furnished on the account of the landlord or property owner”].)  Respondent provides no analysis of which statute should be given effect in the event there is a direct conflict between PUC section 10009.6 and Gov’t code section 53064.5.

In reply, Petitioner states that section 10009.6 also “preempts” section 53064.5.  (Reply 7.)  The entirety of Petitioner’s analysis is the following: “Government Code § 53064.5 generally applies to local agencies whereas Public Utilities Code § 10009.6 specifically applies to municipal corporations like the City of Lynwood.”  (Reply 7, fn. 3.)  The court is not persuaded by this terse analysis.  Section 53064.5 is a state law that applies to Respondent, which is a “city” pursuant to section 50001. 

The court requires further legal argument from the parties, in supplemental briefs, concerning the apparent conflict between PUC section 10009.6 and Gov’t Code section 53064.5.  The parties should address the applicable rules of statutory construction and cite to legislative history of the statutes if pertinent.

Has the State Fully Occupied the Field? 

The state legislature may fully occupy an area of law expressly or impliedly.  Express field preemption occurs when the legislature has expressly manifested its intent to fully occupy the area.  The legislature may fully occupy the field impliedly “in light of one of the following indicia of intent: '(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the' locality.”  (San Diego Gas & Electric Co. v. City of Carlsbad (1998) 64 Cal.App.4th 785, 792-793, discussing California Supreme Court’s decision in Sherwin-Williams Co. v. City of Los Angeles.) 

Petitioner contends that “state law fully occupies the area of who has access to public utilities and under what conditions in the State of California.”  (OB 5-6.)  Petitioner does not show, with citation to statute, that the legislature has expressly manifested its intent to fully occupy the area. 

Petitioner has not developed an argument for implied field preemption with respect to the specific billing and contractual arrangement at issue in section 14-1.13.  She fails to meet her burden of proof on that issue.  (See Fox v. Erickson (1950) 99 Cal.App.2d 740, 742 [a reviewing court “will not act as counsel for either party ….”]; accord Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [same]; Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [same]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].)

Petitioner cites to California Apartment Assn. v. City of Stockton (2000) 80 Cal.App.4th 699, 712 (“CAA”), in which the Court of Appeal considered “whether Stockton's charter, as of October 10, 1911, provided authority to impose liability for a tenant's debt for public utility services on the landlord or subsequent tenant.”  (OB 6-7; CAA, supra at 712.)  The Court of Appeal rejected City’s argument that as a charter city it was not bound by PUC section 10009.6.  Here, Respondent has not argued that it is a charter city which can legislate differently than PUC section 10009.6.  Rather, it argues that the court should interpret section 10009.6 in a way that does not conflict with its ordinance.  CAA is inapposite.  Petitioner has not cited evidence that Respondent has interpreted or enforced section 14-1.13 in a manner to hold a property owner responsible for unpaid charges of a prior tenant. The Court’s analysis in CAA does not support a claim of field preemption with respect to the specific billing and contractual arrangement at issue in this case. 

Sewer/Sewage and Waste/Trash/Rubbish Services

In the prayer for relief, Petitioner seeks a writ directing Respondent “to permit [Petitioner] to have her tenants put their names on the water bill generated by the City of Lynwood for the property located at 11229 Elm Street, Lynwood, California 90262.”  (Pet. Prayer ¶ 5.)  The petition, at times, suggests that Respondent provides sewage services in conjunction with water services.  (See e.g. Pet. ¶¶ 18-38.)  However, the prayer did not seek any specific relief related to sewer or sewage services, but rather solely sought relief related to the “water bill” for the Property.  (Prayer ¶¶ 1-5)  The petition also did not seek any relief related to waste/trash/rubbish services provided by Respondent or contracted by Respondent to be provided by a private entity.

In her opening brief, Petitioner seeks a broader writ of mandate that would direct Respondent as follows:

(1) to open a billing account for utilities, including water services, with the Department of Public Works, who manages the utility that provides water services for the City of Lynwood, through its lease agreement between the City of Lynwood and Lynwood Utility Authority and any subsequent manager of the utility that provides water services for the City of Lynwood.

(2) to open a billing account for utilities, including waste/rubbish services, with whomever manages the utility that provides trash/sewage services for the City of Lynwood, through its contract and any subsequent manager of the utility that provides or contracts for waste/rubbish services for the City of Lynwood. (OB 9.)

            Petitioner has not sufficiently developed an argument, with citation to relevant evidence or statutes, that Respondent has a legal duty to bill tenants directly for trash/sewage under the factual circumstances of this case.

            With respect to waste/rubbish/trash services, Petitioner states the following in her declaration: “On May 2, 2018, two people from Waste Resources: China Mccovery, supervisor and Ingrid (last name unknown) informed me that tenants could not be billed directly for waste/rubbish services and that I would have to put the bill for services in my name.”  (Johnson Decl. ¶ 11.)  At his deposition, Cervantes testified that Waste Resources, Inc. is a private company that provides sanitation services in the City of Lynwood.  He testified that Waste Resources requires the “residential owner … to put the services in their name,” and that he believed this billing arrangement is required by “internal policy” of Waste Resources.  (Medellin Decl., Exh. B at 14.)  Petitioner has not named Waste Resources as a party to this writ action.  To the extent Petitioner seeks a writ directed at Waste Resources or that would materially impact the operations of this private entity, it appears that Waste Resources may be a necessary party.  In any event, Petitioner fails to prove that the actions of Waste Resources, a private entity, are governed by section 10009.6.  Petitioner fails to prove a claim for writ of mandate with respect to waste/rubbish/trash services.

Conclusion

The parties are directed to file supplemental briefs, not exceeding 5 pages,  concerning the apparent conflict between Public Utilities Code section 10009.6 and Government Code section 53064.5.  The parties should address the applicable rules of statutory construction and cite to pertinent legislative history of the statutes.