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requirements: it does not require landlords to provide written notice or to do any other
affirmative act. Instead, it simply has a procedural impact, limiting the timing of certain
evictions. Moreover, this procedural impact—like the procedural requirement in Rental
Housing—is necessary to “regulate the substantive grounds” of the defense it creates.
The purpose of the Ordinance is to protect children from the disruptive impact of moving
during the school year or losing a relationship with a school employee who moves during
the school year. When tenants belong to this protected group (or have a custodial or
familial relationship with a resident protected group member), they have a substantive
defense to eviction; when they no longer belong to the group—because the regular school
year has ended or will have ended by the effective date of the notice of termination—they
no longer have a substantive defense. At this time, landlords may avail themselves of the
unlawful detainer procedures, which are not altered by the Ordinance. Thus, the
Ordinance is a permissible “limitation upon the landlord’s property rights under the
police power,” rather than an impermissible infringement on the landlord’s unlawful
detainer remedy. (Birkenfeld, supra, 17 Cal.3d at p. 149.) We conclude the Ordinance is
substantive for purposes of Birkenfeld’s preemption analysis.
The Property Owners contend the Ordinance is procedural because, unlike
substantive defenses to eviction, it “is wholly unrelated to the merits or substance, and
simply restricts when the landlord may recover possession.” But this is also the case for
other defenses to eviction which the Property Owners concede are “substantive” for
preemption purposes. For example, landlords are precluded from certain evictions when
the tenant is a member of a protected group, such as being catastrophically ill, or when a
comparable unit owned by the landlord is vacant and available. (S.F. Admin. Code,
§ 37.9, subds. (a)(8)(iv), (i)(1)(B).) The Property Owners argue these defenses are
distinguishable because they “limit the circumstances under which landlords may recover
possession.” However, the Ordinance does precisely the same.
The Property Owners also argue if the Ordinance is upheld as substantive,
“nothing would prevent San Francisco from mandating that all for-cause terminations
occur on one day a year . . . .” Although the issue is not before us, an ordinance limiting