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Court of Appeal, First District, Division 5, California.

Alexandra FISHER et al., Plaintiffs and Appellants, v. The CITY OF BERKELEY et al., Defendants and Respondents.


Decided: October 24, 1983

James R. Parrinello, Christiane T. Riess, Dobbs & Nielsen, San Francisco, for plaintiffs and appellants. Myron Moskovitz, Berkeley, Ann E. Juergens, Oakland, for defendants and respondents. Stephen L. Jones, Latham & Watkins, Los Angeles, for amicus curiae on behalf of plaintiffs and appellants. Robert M. Myers, City Atty., Stephen S. Stark, Asst. City Atty., Karl M. Manheim, Deputy City Atty., Michael Heumann, Sr. Atty., Stephen P. Wiman, Staff Atty., Santa Monica, for amicus curiae on behalf of defendants and respondents.

In this case we hold that a rent control ordinance is unconstitutional because of inherent procedural delays in rent adjustment when it precludes consideration of the rate of return to the landlord in authorizing general adjustments in rent ceilings and requires an individual petition for this factor to be considered.   This results in an inexcusably cumbersome rent adjustment procedure not reasonably related to the ordinance's stated purposes of preventing unwarranted rent increases and therefore deprives landlords of due process of law.   We also hold that the subject of the rights of tenants to withhold rent is preempted by state law.

Appellants (landlords) filed a complaint for injunctive and declaratory relief against the City of Berkeley, the Berkeley City Council, and the Berkeley Rent Stabilization Board (Berkeley), challenging the validity of the Berkeley “Ordinance Adopting a Rent Stabilization and Eviction for Good Cause Program” (hereafter “Measure D”) enacted by initiative on June 3, 1980.   The complaint alleged that Measure D was invalid both on its face and as applied to landlords.

Measure D is a comprehensive rent control ordinance affecting some 28,000 Berkeley rental units.   It creates a Rent Stabilization Board (Board), requires that landlords register each rental unit and pay an annual registration fee (upon which the Board is solely dependent for funding), establishes base rent ceilings, provides for annual general adjustments and individual adjustments of rent ceilings, prohibits evictions except upon good cause, and prescribes remedies for violations of its provisions.

The trial court granted Berkeley's motion for judgment on the pleadings, declaring Measure D to be valid both on its face and as applied.   The court rendered judgment without leave to amend as to the claim of facial invalidity, but granted landlords thirty days leave to amend as to the claim that the ordinance was invalid as applied.   Landlords filed an amended complaint, but subsequently dismissed it voluntarily.   Our decision, therefore, is limited to the landlords' claim that Measure D is facially invalid and we do not consider the claim that the measure is invalid as applied.

The parties have briefed and argued the validity of several separate provisions of Measure D.   The primary dispute is whether a rent control ordinance is constitutional if it provides a landlord is to receive a “fair return on investment” rather than a reasonable return on the value of the property.   In Cotati Alliance for Better Housing v. City of Cotati, 148 Cal.App.3d 280, 195 Cal.Rptr. 825, we have determined that a return on investment standard is not unconstitutional.   It is therefore unnecessary to discuss this issue here.   We limit our consideration of Measure D to the other issues presented.

 The first contention we consider is landlords' challenge to subdivisions (d) and (e) of section 12 of Measure D.   Those provisions preclude the Rent Stabilization Board from authorizing an individual rent increase because of increased interest or other expenses resulting from sale or refinancing of rental property if the landlord could reasonably have foreseen that such increased expenses could not be covered by the existing rent schedule (except where refinancing is necessary to make capital improvements or in cases of individual hardship to buyers).1  Landlords contend these provisions constitute unreasonable restraints on alienation (i.e., will inhibit sales at a fair market value) in violation of Civil Code section 711, which declares that “Conditions restraining alienation, when repugnant to the interest created, are void.”

Landlords' argument ignores subdivision (i) of section 12, which provides that “No provision of this Ordinance shall be applied so as to prohibit the Board from granting an individual rent adjustment that is demonstrated necessary by the landlord to provide the landlord with a fair return on investment.”   This safety valve overrides all other provisions of the ordinance and averts any danger that subdivisions (d) and (e) might prevent a purchaser from realizing a fair return, and thus prevents any unreasonable restraint on alienation.  (See generally Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 948, 148 Cal.Rptr. 379, 582 P.2d 970.)

 More to the point, Civil Code section 711 does not apply to municipal ordinances.   The rule against restraints on alienation “is directed against provisions in contracts or conveyances.   It has no application to disabling restraints established by express statute or by the operation of rules of law;  e.g., the incapacity of a minor or insane person to transfer land, or restrictions on the power of a trustee.”  (3 Witkin, Summary of Cal.Law (8th ed. 1973) Real Property, § 314, p. 2024;  accord, 4 Rest.Property, pp. 2377, 2381.)   Thus Measure D cannot violate Civil Code section 711.

 Landlords assert an equal protection challenge to section 5, subdivision (f), of Measure D.   When Measure D was passed, this provision exempted from the ordinance's application “Rental units in a residential property which is divided into a maximum of four (4) units where one of such units is occupied by the landlord as his/her principal residence,” but limited the exemption to “rental units that would have been exempt under the provisions of this Ordinance had this Ordinance been in effect on December 31, 1979.” 2  Landlords challenge subdivision (f) to the extent that it excludes from the exemption any property that became owner-occupied after December 31, 1979.

As Berkeley points out, however, the challenged exclusion bears a debatable rational relationship to the purposes of Measure D.   The Berkeley electorate could reasonably have determined that the exclusion was desirable to prevent certain landlords from avoiding application of Measure D by evicting tenants and moving into their rental property after the provisions of the proposed ordinance became known.   Landlords argue that any landlords so disposed would already have taken such measures, since rental property of four or less units was already exempt from rent control by the terms of a prior ordinance (the “Temporary Rent Stabilization Ordinance,” passed by the Berkeley City Council effective December 30, 1979), but this response ignores the fact that Measure D was far more comprehensive than its predecessor.   Because the challenged distinction is supported by a debatable rational basis, the equal protection challenge must be rejected.  (Minnesota v. Clover Leaf Creamery Co. (1981) 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659;  New Orleans v. Dukes (1975) 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511;  Hale v. Morgan (1978) 22 Cal.3d 388, 395, 149 Cal.Rptr. 375, 584 P.2d 512.)

 Landlords challenge certain portions of section 14 of Measure D.   Section 14 prohibits retaliation against a tenant for the assertion or exercise of rights under the ordinance.   The challenged provisions, when enacted, stated that in an action by the landlord to recover possession or in an affirmative action taken by the tenant for damages, “evidence of the assertion or exercise by the tenant of rights under this Ordinance within six months prior to the alleged acts of retaliation shall create a presumption that the landlord's act was retaliatory.  ‘Presumption’ means that the Court must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.”   Subsequent to the trial court's judgment in this case the latter sentence was amended by the Berkeley “Tenants Rights Amendment Act of 1982” to read, “ ‘Presumption’ means that the Court must find the existence of the fact presumed unless and until its nonexistence is proven by a preponderance of the evidence.”

Landlords contend that the pre-amendment presumption was a presumption affecting the burden of proof, and as such was preempted by the Evidence Code.   Berkeley claims there was no preemption because the presumption was one affecting the burden of producing evidence.

As previously indicated, only the facial validity of Measure D is challenged.   The 1982 modification of section 14 renders the issue as to the validity of the former presumption moot.  (Callie v. Board of Supervisors (1969) 1 Cal.App.3d 13, 18, 81 Cal.Rptr. 440;  Jordan v. County of Los Angeles (1968) 267 Cal.App.2d 794, 799, 73 Cal.Rptr. 516;  6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 466, p. 4421.)   The 1982 amendment changing the challenged presumption to one affecting the burden of proof may be preempted by state law, but this issue is not presently before us.

 Landlords claim it was procedurally improper for the court to grant judgment on the pleadings, because this denied them the opportunity to present evidence as to their claims of confiscation, denial of equal protection, and unlawful restraint on alienation.   This argument lacks merit.   On a defense motion for judgment on the pleadings, all facts alleged in the complaint are deemed admitted.  (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 714–715 fn. 3, 117 Cal.Rptr. 241, 527 P.2d 865;  Colberg, Inc. v. State of California ex rel. Dept. of Pub. Wks. (1967) 67 Cal.2d 408, 411–412, 62 Cal.Rptr. 401, 432 P.2d 3, cert. den. (1968) 390 U.S. 949, 88 S.Ct. 1037, 19 L.Ed.2d 1139.)   There was no need for landlords to present any evidence.   Landlords claim that judgment on the pleadings denied them a declaration as to facial invalidity, but the judgment expressly declared that Measure D is “valid on its face.”   It is well established that a motion for judgment on the pleadings “may be used in an action for declaratory relief to obtain a declaratory judgment on the merits in favor of the defendant rather than a dismissal of the plaintiff's suit.”  (4 Witkin, Cal.Procedure (2d ed. 1971), Proceedings Without Trial, § 161, p. 2817 (emphasis in original).)   Landlords claim they should have been granted leave to amend their complaint, but any amendment to make further factual allegations would only be applicable to the claim that the ordinance was invalid as applied.   Landlords were granted leave to amend as to this claim (although they later dismissed the amended complaint).

We note for the record that as a result of discussion at oral argument of a point not discussed in the briefs, we vacated submission in this case in order to receive Berkeley's concession that the term “fair return on investment” in sections 12(c) and 12(i) (pertaining to individual rent adjustments) may reasonably be interpreted to permit the Board to consider and allow for any decrease in the purchasing power of the return due to inflation.   As landlords stated in reply to that concession, “Although demonstrating the city's recognition of a serious defect in the Ordinance, the concession does nothing to correct it.   The Ordinance freezes rents (and thus returns) at their May 1980 levels and contains no adequate procedural mechanism whereby landlords can obtain rent adjustments to offset losses due to inflation.”   Landlords' comments are well taken.

 Measure D contains two methods by which rent ceilings can be adjusted.   In section 11, providing for annual general adjustments of rent ceilings, Measure D precludes the Board from granting citywide rent increases except to offset certain increases in costs.3  Because of this prohibition within the ordinance, despite Berkeley's concession, the Board in making general adjustments does not have the power to consider factors (e.g., inflation) affecting the landlords' return on investment such as we discussed in our decision in Cotati Alliance for Better Housing v. City of Cotati, (1983) 148 Cal.App.3d, pages 294–296, 195 Cal.Rptr. 825.

The other method by which rent ceilings may be adjusted is provided by section 12 of Measure D, which provides for individual petitions for adjustment of rent ceilings.   In setting forth the factors to be considered by the Board in acting upon such individual petitions, Measure D specifically provides that among the factors to be considered is the “landlord's rate of return on investment.” 4

Thus to obtain a rent adjustment and have any consideration given to the effects of inflation on the landlords' rate of return on investment, there must be a petition by each landlord on an individual basis.   Such a procedure for adjusting maximum rents is “constitutionally insufficient to relieve landlords from confiscatory rent levels ․”  (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 167, 130 Cal.Rptr. 465, 550 P.2d 1001.)

The requirement of an individual petition to ameliorate the effects of inflation is the same type of requirement upon which the court in Birkenfeld held unconstitutional a predecessor Berkeley rent control ordinance requiring an individual petition for any rent adjustments.   The Birkenfeld court said that the predecessor ordinance “drastically and unnecessarily restricts the rent control board's power to adjust rents, thereby making inevitable the arbitrary imposition of unreasonably low rent ceilings.   It is clear that if the base rent for all controlled units were to remain as the maximum rent for an indefinite period many or most rent ceilings would be or become confiscatory.   For such rent ceilings of indefinite duration an adjustment mechanism is constitutionally necessary to provide for changes in circumstances and also provide for ․ situations in which the base rent cannot reasonably be deemed to reflect general market conditions.   The mechanism is sufficient for the required purpose only if it is capable of providing adjustments in maximum rents without a substantially greater incidence and degree of delay than is practically necessary.  ‘Property may be as effectively taken by long-continued and unreasonable delay in putting an end to confiscatory rates as by an express affirmance of them ․’  (Smith v. Illinois Bell Tel. Co. (1926) 270 U.S. 587, 591 [46 S.Ct. 408, 409, 70 L.Ed. 747, 749] (enjoining enforcement of telephone rates because of unreasonable delay in acting upon application for rate increase.).)   The charter amendment is constitutionally deficient in that it withholds powers by which the rent control board could adjust maximum rents without unreasonable delays and instead requires the Board to follow an adjustment procedure which would make such delays inevitable.”  (Birkenfeld v. City of Berkeley, supra, 17 Cal.3d at p. 169, 130 Cal.Rptr. 465, 550 P.2d 1001.)   The same is true here:  Measure D is deficient in that it withholds powers by which the Board could adjust rents without unreasonable delay to account for inflation.

As a result, “regardless of how inequitable any rent ceiling may be under all of the circumstances, it cannot be adjusted except by a procedure that inherently and unnecessarily precludes reasonable prompt action except perhaps for a lucky few.  [¶] ․  The delays in rent adjustment with which we are concerned stem not from any anticipated dereliction of duty on the part of the rent control board, but from defects in the charter amendment itself.”   (Id., at p. 172, 130 Cal.Rptr. 465, 550 P.2d 1001.)

We hold that “the inexcusably cumbersome rent adjustment procedure is not reasonably related to the amendment's stated purpose of preventing excessive rents and so would deprive plaintiff landlords of due process of law if permitted to take effect.”  (Id., at p. 173, 130 Cal.Rptr. 465, 550 P.2d 1001.)   Thus, for reasons identical to those expressed by the Supreme Court in Birkenfeld in invalidating the predecessor Berkeley rent control ordinance, we find Measure D to be invalid on its face, not because of its objectives, but because the procedures impose heavy burdens upon landlords not reasonably related to the accomplishment of its objectives.

The purpose of rent control must be to assure fair treatment of both tenants and landlords.   In our free enterprise system, the landlord should not be responsible for subsidizing rents to the extent that expenses cannot be recovered and a fair and reasonable profit cannot be received.   Although Measure D would permit harm caused by inflation to be addressed by individual petitions to the Board, it suffers from the same deficiencies as its predecessor in that delays in considering and acting upon individual petitions would inevitably cause delays in providing a fair return to the landlord and would therefore be confiscatory.5

 We now turn to landlords' final contention, challenging the provisions of section 15, subdivisions (a)(1) and (a)(2), which allow a tenant, either upon Board authorization (subdivision (a)(1)) or on the tenant's own initiative and belief (subdivision (a)(2)) to withhold all or part of the rent if the landlord charges excessive rents or fails to register the unit, until compliance with the ordinance is achieved.6  Landlords contend that the rent withholding provisions are preempted by state law.7

The court in Birkenfeld v. City of Berkeley, supra, 17 Cal.3d at pp. 141–142, 130 Cal.Rptr. 465, 550 P.2d 1001, held that local regulation of amounts of rent payable is not preempted by state legislation.   Landlords contend that, in contrast, state legislation pertaining to when rent is due preempts the withholding provisions of subdivisions (a)(1) and (a)(2) of section 15, by virtue of both direct statutory conflict and full occupation of the field.   Birkenfeld did not deal with this issue.

We hold that the challenged provisions of section 15 are preempted by general laws intended fully to occupy the field of regulation as to when rent is due, to the exclusion of municipal regulation.   In addition to Civil Code section 1947 which provides for the timing of the payment of rent if there is no usage or contract to the contrary, other state action has occurred in this area.8  The Legislature has provided in Code of Civil Procedure section 1161 that a tenant is guilty of unlawful detainer when the tenant continues in possession “after default in the payment of rent.”   Even more to the point, in Civil Code section 1942 the Legislature has identified circumstances under which a tenant may withhold rent and utilize those funds to repair deficiencies rendering the premises untenable which the landlord has failed to repair.   The Legislature specifically provided in section 1942 that this remedy would not be available to the tenant more than twice in any twelve month period and set forth the procedures under which this withholding of rent may be authorized.

Further, subdivision (d) of section 1942 provides that the withholding remedy “is in addition to any other remedy provided by this chapter, the rental agreement, or other applicable statutory or common law,” to the exclusion of municipal remedies.   Thus in addition to contributing to a body of statutory law that we believe is intended fully to occupy the field of regulation as to when rent is due, the latter provision of section 1942 suggests a direct conflict with municipal ordinances permitting the withholding of rent.

For the foregoing reasons, the provisions of Measure D contained in section 15, subdivisions (a)(1) and (a)(2), allowing a tenant to withhold all or part of the rent, cannot be sustained.

Measure D contains a severability clause.9  However, as the Supreme Court found in ruling that Berkeley's predecessor rent control ordinance was unconstitutional, “there appears no way of severing the invalid limitations on the Board's powers to adjust maximum rents from the remainder of the charter amendment.   The constitutional defect cannot be cured simply by excision but only by additional provisions that are beyond our power to provide.  (Dillon v. Superior Court (1971) 4 Cal.3d 860, 871 [94 Cal.Rptr. 777, 484 P.2d 945].)”  (Birkenfeld v. City of Berkeley, supra, 17 Cal.3d at p. 173, 130 Cal.Rptr. 465, 550 P.2d 1001.)

The judgment is reversed.


1.   Subdivisions (d) and (e) of section 12 provide in full:d. No individual upward adjustment of a rent ceiling shall be authorized by the Board by reason of increased interest or other expenses resulting from the landlord's refinancing the rental unit if, at the time the landlord refinanced, the landlord could reasonably have foreseen that such increased expenses could not be covered by the rent schedule then in existence, except where such refinancing is necessary for the landlord to make capital improvements which meet the criteria set forth in Section 12.c.(3).  This paragraph shall only apply to that portion of the increased expenses resulting from the refinancing that were reasonably foreseeable at the time of the refinancing of the rental unit and shall only apply to rental units refinanced after the date of adoption of this Ordinance.e. Except for cases of individual hardship as set forth in Subsection 12.i of this Ordinance, no individual upward adjustment of a rent ceiling shall be authorized by the Board because of the landlord's increased interest or other expenses resulting from the sale of the property, if at the time the landlord acquired the property, the landlord could have reasonably foreseen that such increased expenses would not be covered by the rent schedule then in effect.   This Subsection (12.e) shall only apply to rental units acquired after the date of adoption of this Ordinance.

2.   This subdivision was amended by the Berkeley “Tenants Rights Amendment Act of 1982” to limit the exemption to rental property divided into two units.

3.   Section 11 provides in full:a.  Once each year, the Board shall consider setting and adjusting the rent ceiling for all rental units covered by this Ordinance in general and/or particular categories of rental units covered by this Ordinance deemed appropriate by the Board.   The Board shall hold at least two public hearings prior to making any annual general adjustment of the rent ceilings.   The first such public hearing shall be conducted no later than October 31, 1980, and the first annual general adjustment shall be made no later than December 31, 1980.b. In making annual general adjustments of the rent ceiling, the Board shall:(1) Adjust the rent ceiling upward by granting those landlords who pay for utilities a utility adjustment for increases in the City of Berkeley for utilities.(2) Adjust the rent ceiling upward by granting landlords a property tax, maintenance and operating expenses increase adjustment (exclusive of utilities) for increases in the City of Berkeley for property taxes and maintenance and operating expenses.(3) Adjust the rent ceiling downward by requiring landlords to decrease rents for any decreases in the City of Berkeley for property taxes.In adjusting rent under this subsection, the Board shall adopt a formula or formulas of general application.   This formula will be based upon a survey or other available data indicating increases or decreases in the expenses in the City of Berkeley set forth in this subsection.   For maintenance and operating expense adjustments, the Board may also use survey data from surrounding communities where appropriately the Board shall make no more than one annual adjustment of rent ceilings per rental units per year.(c) An upward general adjustment in rent ceilings does not automatically provide for a rent increase.   Allowable rent increases pursuant to a general upward adjustment shall become effective only after the landlord gives the tenant at least a thirty (30) days written notice of such rent increases and the notice period expires.(d) If the Board makes a downward general adjustment in the rent ceilings, landlords of rental units to which this adjustment applies shall give tenants of such rental units written notice of the rent decrease to which they are entitled.   Such rent decreases shall take effect not later than thirty (30) days after the effective date set by the Board for the downward general adjustment.(e) If the maximum allowable rent specified under this Ordinance for a rental unit is greater than the rent specified for such unit in the rental agreement, the lower rent specified in the rental agreement shall be the maximum allowable rent until the rental agreement expires.   If the maximum allowable rent specified under this Ordinance for a rental unit is less than the rent specified for such unit in the rental agreement, the lower rent specified under this Ordinance shall be the maximum allowable rent.(f) No rent increase pursuant to an upward general adjustment of a rent ceiling shall be effective if the landlord:(1) Has continued to fail to comply, after order of the Board, with any provisions of this Ordinance and or orders or regulations issued thereunder, or(2) Has failed to bring the rental unit into compliance with the implied warranty of habitability.

4.   Section 12, subdivision (c), provides in full:“In making individual adjustments of the rent ceiling, the Board or the hearing examiner shall consider the purposes of this Ordinance and shall specifically consider all relevant factors, including (but not limited to):(1) Increases or decreases in property taxes;(2) Unavoidable increases or any decreases in maintenance and operating expenses;(3) The cost of planned or completed capital improvements to the rental unit (as distinguished from ordinary repair, replacement and maintenance) where such capital improvements are necessary to bring the property into compliance or maintain compliance with applicable local code requirements affecting health and safety, and where such capital improvement costs are properly amortized over the life of the improvement;(4) Increases or decreases in the number of tenants occupying the rental unit, living space, furniture, furnishings, equipment, or other housing services provided, or occupancy rules,(5) Substantial deterioration of the controlled rental unit other than as a result of normal wear and tear;(6) Failure on the part of the landlord to provide adequate housing services, or to comply substantially with applicable state rental housing laws, local housing, health and safety codes, or the rental agreement;(7) The pattern of recent rent increases or decreases;(8) The landlord's rate of return on investment.   In determining such return, all relevant factors, including but not limited to the following shall be considered:  the landlord's actual cash down payment method of financing the property, and any federal or state tax benefits accruing to landlord as a result of ownership of the property;(9) Whether or not the property was acquired or is held as a long-term or short-term investment;  and(10) Whether or not the landlord has received rent in violation of the terms of this Ordinance or has otherwise failed to comply with the Ordinance.It is the intent of this Ordinance that individual upward adjustments in the rent ceilings on units be made only when the landlord demonstrates that such adjustments are necessary to provide the landlord with a fair return on investment.

5.   It is conceivable that the filing fee charged for individual petitions, in circumstances where a factor such as insufficient rate of return on investment is common to all landlords, might itself be prohibitive and therefore unconstitutional.

6.   Subdivision (a) of section 15 provides in pertinent part:a.  For violation of Rent Ceilings or Failure to Register.   If a landlord fails to register in accordance with section 8 of this Ordinance, or if a landlord demands, accepts, receives or retains any payment in excess of the maximum allowable rent permitted by this Ordinance, a tenant may take any or all of the following actions until compliance is achieved:(1) A tenant may petition the Board for appropriate relief.   If the Board, after the landlord has proper notice and after a hearing, determines that a landlord has wilfully and knowingly failed to register a rental unit covered by this Ordinance or violated the provisions of Sections 10, 11 and 12 of this Ordinance, the Board may authorize the tenant of such rental unit to withhold all or a portion of the rent for the unit until such time as the rental unit is brought into compliance with this Ordinance.   After a rental unit is brought into compliance, the Board shall determine what portion, if any, of the withheld rent is owed to the landlord for the period in which the rental unit was not in compliance.   Whether or not the Board allows such withholding, no landlord who has failed to comply with the Ordinance shall at any time increase rents for a rental unit until such unit is brought into compliance.(2) A tenant may withhold up to the full amount of his or her periodic rent which is charged or demanded by the landlord under the provisions of this Ordinance.   In any action to recover possession based on nonpayment of rent, possession shall not be granted where the tenant has withheld rent in good faith under this Section ․

7.   Berkeley contends that the challenge to subdivision (a)(2) is not justiciable because that provision involves only tenant action and no tenants were named as defendants here.   But in an action for declaratory relief the court can consider “other problems” which would otherwise have required a different type of pleading (Mackay v. Whitaker (1953) 116 Cal.App.2d 504, 509–510, 253 P.2d 1021) in order to avoid piecemeal litigation (Beeler v. Plastic Stamping, Inc. (1956) 144 Cal.App.2d 306, 309, 300 P.2d 852;  Byrd v. Mutual Benefit H. & A. Assn. (1946) 73 Cal.App.2d 457, 465, 166 P.2d 901).   Further, the defendant City of Berkeley (through the electorate) granted tenants the unilateral right to withhold;  any doubts as to the sufficiency of naming the city as a defendant—and hence the justiciability of the controversy—are to be resolved in favor of present adjudication.  (See California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 26, 61 Cal.Rptr. 618.)

8.   Civil Code section 1947 provides:“When there is no usage or contract to the contrary rents are payable at the termination of the holding, when it does not exceed one year.   If the holding is by the day, week, month, quarter, or year, rent is payable at termination of the respective periods, as it successfully becomes due.”

9.   Section 16 of the ordinance provides:“If any provision of this Ordinance or application thereof is held to be invalid, this invalidity shall not effect other provisions or applications of this Ordinance which can be given effect without the invalid provisions or applications, and to this end the provisions and applications of this Ordinance are inseverable.”

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.

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