Judge Mary H. Strobel, Case 21STCP00200 2023-01-10 Tentative Ruling

Hon. Mary H. Strobel

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

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.)

On September 15, 2022, the petition came for hearing before the court. The court adopted its tentative ruling, as set forth in its minute order, and continued the hearing on the petition to January 10, 2023, for supplemental briefing on the apparent conflict between Public Utilities Code Section 10009.6 and Government Code Section 53064.5, including relevant legislative history. The court’s minute order dated September 15, 2022, further discusses the relevant background, procedural history, standard of review, and Petitioner’s argument regarding “field preemption.” That discussion is not repeated here but is incorporated by reference.

On November 8, 2022, Petitioner filed a supplemental brief in support of the petition. On December 12, 2022, Respondent filed its supplemental opposition. On December 19, 2022, Petitioner filed a supplemental reply.[1]

Respondent’s RJN Exhibit C – “California Public Utilities Commission list of Regulated Water and Sewer Utilities dated July 22, 2021, maintained on the Commission’s website at https://www.cpuc.ca.gov/aboutcpuc/divisions/water-division” -- Denied.

Petitioner’s objection to Respondent’s RJN Exhibit C is sustained. Respondent has not furnished the court with sufficient information to enable it to take judicial notice of the matter. (Evid. Code § 453(b).)

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.

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.) 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.

(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.

“‘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.)

As a threshold issue, the court decides whether Respondent is subject to section 10009.6(b), which applies to a “municipal corporation owning or operating a public utility furnishing services for residential use.”

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.)

“‘Municipal corporation’ is a generic term generally including cities, which in turn includes charter cities…. As employed in Division 5 of the Public Utilities Code, concerning utilities owned by municipal corporations, which includes section 10009.6, ‘municipal corporation’ is used in its ordinary sense. The term includes ‘city.’” (California Apartment Assn. v. City of Stockton (2000) 80 Cal.App.4th 699, 704.)

Here, Respondent admits that it is “a municipal corporation and/or city existing under and by virtue of the laws of the State of California, and situated in Los Angeles County.” (Pet. ¶ 3; Ans. ¶ 3.) In its opposition briefs, Respondent has not disputed that it is a municipal corporation or that it owns or operates a public utility that furnishes services for residential use.

In the supplemental opposition, Respondent nonetheless contends that it is not subject to section 10009.6 because it is a city and not a privately owned utility. Respondent states that “the Government Code, not the Public Utilities Code, … applies to water services provided by the City.” (Suppl. Oppo. 5.) Respondent cites a summary of law from the Witkin treatise, stating: “The [Public Utilities] Commission's jurisdiction extends only to regulation of privately owned utilities; in the absence of express statutory provision, it has no jurisdiction over municipally owned utilities." (Suppl. Oppo. 5, citing Witkin, 8 Summary of California Law, 9th Edition, Constitutional Law § 892, p. 436.)

These arguments are not persuasive. As Respondent acknowledges, the Public Utilities Commission may have jurisdiction over municipally owned utilities if there is an “express statutory provision” conferring such jurisdiction on Commission. Section 10009.6 expressly applies to a municipal corporation such as Respondent that operates a public utility. Moreover, the Court of Appeal has held that section 10009.6 applies to a city that operates a public utility. (California Apartment Assn., supra, 80 Cal.App.4th at 701-705.) The Court also held that “section 10009.6 is not preempted as a municipal affair because it is within the paramount authority of the Legislature respecting public utilities under article XII [of the California Constitution].” (Id. 701, 706-713.)

The court concludes that Respondent, as a municipal corporation that operates a public utility, falls squarely within the scope 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., supra, 80 Cal.App.4th at 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.) Respondent appears to suggest that the prohibition on requiring utilities to be placed in the name of the property owner absent the owner’s consent only applies if there is non-payment by a previous tenant. However, that is not what the plain language of the statute provides. “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.)

Further, the legislative history of section 10009.6 suggests the requirement of consent of the property owner to place utilities in the owner’s name operates independently of the prohibition on charging a property owner for a previous tenant’s delinquency. (See Exh. 2 p. 367 (“Existing law authorized both types of municipal utilities, when there has been a nonpayment by a previous tenant for water service, to ‘require that service to subsequent tenants be furnished on the account of the landlord of property owner.’ This bill deletes this provision for both types of utilities and instead prohibits municipal utilities from requiring that service to subsequent tenants be furnished on the account of the landlord or property owner unless the property owner consents….); Exh. 2 p. 312 (“This bill: … requires municipal utilities to obtain the consent of a landlord before requiring its tenants’ utility service to be billed to the landlord’s account.”))

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, as a general matter, 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”].) The court ordered supplemental briefing concerning the apparent conflict between PUC section 10009.6 and Government Code section 53064.5.

The California Supreme Court has “emphasized the importance of harmonizing potentially inconsistent statutes” such as sections 10009.6 and 53064.5. The Court explained as follows:

“‘A court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and effect to all of their provisions. [Citations.] This rule applies although one of the statutes involved deals generally with a subject and another relates specifically to particular aspects of the subject.’ [Citation.] Thus, when ‘ “two codes are to be construed, they ‘must be regarded as blending into each other and forming a single statute.’ [Citation.] Accordingly, they ‘must be read together and so construed as to give effect, when possible, to all the provisions thereof.’ [Citation.]” ' [Citation.] Further, ‘ “ ‘[a]ll presumptions are against a repeal by implication. [Citations.]’ [Citation.] Absent an express declaration of legislative intent, we will find an implied repeal ‘only when there is no rational basis for harmonizing the two potentially conflicting statutes [citation], and the statutes are “irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.” ’ ”

The Court also discussed “the rules [a court] must apply when faced with two irreconcilable statutes”: “‘If conflicting statutes cannot be reconciled, later enactments supersede earlier ones [citation], and more specific provisions take precedence over more general ones [citation].’ [Citation.] But when these two rules are in conflict, the rule that specific provisions take precedence over more general ones trumps the rule that later-enacted statutes have precedence.” (Id. at 960; see also People v. Sup. Ct. of Riverside County (2022) 81 Cal.App.5th 851, 884-885 [applying State Dept. of Public Health to two potentially irreconcilable statutes].)

The plain language of both sections show that 10009.6 and 53064.5 apply to Respondent, as it is a municipal corporation that operates a public utility and also a “local agency,” i.e. a City. Because sections 10009.6 and 53064.5 deal with the same subject and potentially conflict, they must be harmonized and “read together” if possible. (State Dept. of Public Health, 60 Cal.4th at 955-956.) To the extent the statutes are irreconcilable, the more specific statute and later enacted statute will control. (Id. at 960-961.) Section 10009.6 is the more specific statute, as applied to Respondent. The relevant provisions of section 10009.6 were also added in 1996 and 1998, whereas section 53064.5 has not been amended since its enactment in 1985. Accordingly, section 10009.6 takes precedence over section 53064.5 as applied to Respondent.

Legislative history supports this conclusion. In 1985, section 53064.5 and a predecessor statute to section 10009.6 (section 10016) were enacted and permitted a local agency and a municipal corporation to require that service to subsequent tenants be furnished on the account of the landlord or property owner. (See Pet. Suppl. RJN Exh. 3 and 4.) Also in 1985, several other statutes were enacted authorizing water districts to require that service to subsequent tenants be furnished on the account of the landlord or property owner. (See Ibid. at pp. 395-397 of 480; see Public Utilities Code §§ 12811.5, 16469 and Water Code §§ 22079, 31007.5, 35482, 71618.)

Section 10009.6 was amended in 1996, by Assembly Bill 1770, to prohibit municipally owned utilities and municipal utility districts from requiring that service to subsequent tenants be furnished on the account of the landlord or property owner unless the property owner consents through a written agreement. (See 1996 Cal. Legis. Serv. Ch. 24 (A.B. 1770) (WEST) and Pet. Suppl. RJN Exh. 2.) A senate bill analysis for AB 1770 noted that there are two types of municipal utilities, including, as relevant here, “public utilities owned by cities.” (Suppl. RJN Exh. 2, at p. 316 of 480.) The bill analysis noted that, under existing law, municipal utilities could require service to subsequent tenants be furnished on the account of the landlord or property owner. The bill analysis stated that AB 1770 “deletes this provision” and requires written consent from the property owner for service to subsequent tenants to be furnished on account of the property owner. (Ibid.)

Section 10009.6 was further amended in 1998, by Senate Bill 2166, to “delete the requirement that the owner's consent be in writing.” (1998 Cal. Legis. Serv. Ch. 739 (S.B. 2166) (WEST) and Suppl. RJN Exh. 1.) A Senate bill analysis noted that SB 2166 applied to municipal utilities. (Suppl. RJN Exh. 1 at p. 101 of 480.) The bill analysis further noted that “[t]his bill does not address comparable issues for utilities owned and/or operated by community service districts or county irrigation districts because the bill’s sponsor is not aware of any problems in those types of entities.” (Id. at p. 104 of 480.)

Taken together, the legislative history of section 10009.6 from 1996 and 1998 shows clear intent for section 10009.6 to apply to a municipal corporation, such as Respondent, that owns or operates a public utility. The Legislative amended section 10009.6 to prohibit municipally owned utilities from requiring that service to subsequent tenants be furnished on the account of the landlord or property owner unless the property owner consents. In making such amendments, the legislative history suggest the legislature was aware of other statutes that address comparable issues differently. The Legislature intended section 10009.6 to apply to municipal corporations despite other existing statutes that “address comparable issues” differently for other water providers.

In opposition, Respondent states that “[w]hile Section 10009.6 was amended in 1996 to remove that authorization, Section 53064.5, other sections of the Public Utilities Code, and the Water Code were not similarly amended and continue to authorize placement of water services in the name of the landlord or property owner.” (Suppl. Oppo. 3, citing Public Utilities Code §§ 2714, 16469 and Water Code §§ 22079, 31007.5, 35482, 71618.) This fact does not support Respondent’s conclusion, especially in light of the legislative history of section 10009.6 discussed above.

Respondent argues that “Lynwood Municipal Code separately provides that unpaid water bills constitute a lien against the property to which the service was provided” and “Section 53064.5 imposes no greater burden on the property owner than already exists under applicable law.” (Suppl. Oppo. 4, citing Resp. RJN Exh. A.) This argument is unpersuasive because it does not address the relevant language from section 10009.6(b) or the legislative history about the 1996 and 1998 amendments at issue.

Respondent argues that there is no “clear indication” that section 10009.6 was intended to preempt section 53064.5. (Suppl. Oppo. 6.) With respect to section 10009.6 and section 53064.5, the issue is not preemption of a local ordinance, but rather construction of state law. As discussed above, the court must harmonize two potentially conflicting statutes and, if that is not possible, determine which statute takes precedence in this case. For reasons discussed above, to the extent the statutes cannot be reconciled, section 10009.6 controls because it is the more specific statute and because the relevant language in section 10009.6 was enacted substantially after section 53064.5 was enacted. The legislative history confirms this interpretation of the statutes.

Because it directly conflicts with section 10009.6, section 14-1.13 is preempted to the extent it authorizes Respondent to require service to subsequent tenants be furnished on the account of the landlord or property owner without the landlord or property owner voluntarily agreeing to such arrangement. Petitioner has not voluntarily agreed to have the water service to her tenants be furnished her account. Accordingly, Respondent abused its discretion by seeking to enforce section 14-1.13 and require Petitioner to place the water service for her tenants in her name. The court will issue 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.)

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.

The first and second causes of action are for declaratory and injunctive relief. Pursuant to the local rules which designate that Department 82 is a specialized Writs and Receivers department and not a general civil department, only a cause of action for writ of mandate is properly assigned to this department. (LASC Local Rules 2.8(d) and 2.9.) Accordingly, at the trial setting conference on May 11, 2021, the court stayed the first and second causes of action and indicated that they would be transferred to Department One for reassignment if they remain after the court’s ruling on the writ petition.

At the hearing, Counsel should address whether the court’s ruling on the writ petition fully resolves the first and second causes of action.

The petition for writ of mandate is GRANTED IN PART. The court will issue 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 court will discuss with the parties whether this ruling also resolves first and second causes of action, other whether they should be transferred to Department One for reassignment to an independent calendar department. (LASC Local Rules 2.8(d) and 2.9.)

[1] Petitioner did not file and serve the supplemental reply by November 3, 2022, the deadline set by the court. On November 15, 2022, Respondent objected and requested an extension to file its opposition to December 12, 2022. Without leave of court, Respondent filed its opposition on December 12, 2022. While the parties are admonished to obtain leave of court to file briefs after the deadlines set by the court, there appears to be no prejudice to either party. The court considers the briefs as filed.