7
For example, subdivision (A) of section 8.52.090 provides that “[n]o Landlord may
terminate a Tenancy of an occupied Dwelling Unit, unless the Landlord can demonstrate either
a For Cause or No-Fault termination.”5 In addition, subdivision (E) of section 8.52.090, which
governs no-fault termination of tenancy based on owner-occupancy, provides “[a] landlord may
only terminate a Tenancy under this Section if the Landlord or Landlord’s Family Member who
will reside in the Dwelling Unit is similarly situated as the Tenant or Tenant’s household
members who are being displaced . . .”6 (§ 8.52.090(E)(1)(a)(vi), italics added.)
The Board has demonstrated its aptitude to use conditional language when it is intended,
and no such language is used in subdivision (B)(4) of section 8.52.090. When lawmakers use
materially different language in statutory provisions addressing the same or related subjects, the
normal inference is that the legislative body intended a difference in meaning. (American
Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 463.) In
the absence of a prescribed consequence or sanction for the failure to comply with a statute, we
presume a mandatory directive is intended to be directory. (Board of Education v. Sacramento
County Bd. of Education (2001) 85 Cal.App.4th 1321, 1329.) Thus, submission of the notice to
the Department, while required, was not intended to be an element of a landlord’s case-in-chief.
As well, we are not persuaded by defendants’ contention that a violation of section
8.52.090, subdivision (B)(4) constitutes an affirmative defense. The plain language of the
Ordinance and its legislative history demonstrate otherwise.
Section 8.52.090, as it existed in 2018, did not require a landlord to serve the notice
upon the Department. The Ordinance did specify, however, “[i]n any action by a landlord to