New York City Dept by uY18374b


									Filed 1/1/96   Modified and Certified for Publication 11/25/96 (order attached)


                                    FIRST APPELLATE DISTRICT

                                             DIVISION FOUR


           Plaintiff and Respondent,
                                                                   (San Francisco County Super.
PETER J. BULLOCK,                                                   Ct. No. 898704, consolidated
                                                                    with 802676, 809721, 825159,
           Defendant and Appellant.                                 825717, 847989, 848087, 851156
                                                                    & 856680)

        In Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072
(Bullock I) this court (among other things) rejected the claim of hotel owner Peter J.
Bullock that the Residential Hotel Unit Conversion and Demolition Ordinance adopted
by the City and County of San Francisco (City) worked an unconstitutional taking of his
property without just compensation. We also held that Bullock had alleged a damages
cause of action against the City for violation of 42 U.S.C. § 1983 (section 1983), the
federal civil rights statute.
        When the case returned to the trial court, Bullock filed a new pleading realleging
his section 1983 claim in considerable detail. The major point of the cause of action as
realleged was retaliation by the City in the form of discriminatory rezoning and
enforcement practices. The trial court summarily adjudicated Bullock’s civil rights cause
of action in favor of the City, following which judgment on the pleadings was granted as
to all other claims and causes of action pending against the City.

       The primary issue here is whether Bullock presented sufficient evidence in support
of his civil rights claim to warrant going forward to a jury trial. We agree with the trial
court that Bullock did not produce enough evidence to defeat summary disposition on the
rezoning issue. We further conclude that the City was entitled to summary adjudication
on Bullock’s claims of retaliatory administrative action. Concluding that judgment on the
pleadings was proper, we affirm the omnibus final judgment entered.
       This litigation has a lengthy and bitter history, the details of which were recounted
in Bullock I. Only a brief and general summary is needed here.
       The Residential Hotel Unit Conversion and Demolition Ordinance (the Ordinance)
was adopted in 1979 with the aim of preserving the existing supply of residential hotel
units. Units could not be converted from residential use without a permit, which would
not be granted unless the owner provided relocation assistance to displaced hotel residents
and made a “one-for-one replacement” of the units being converted. This latter
requirement could be satisfied in one of three ways: the owner could (1) construct
replacement units, (2) rehabilitate replacement units, or (3) pay to a special fund an “in
lieu” fee representing 40 percent of the cost of the converted units.
       Bullock bought the Abigail Hotel in 1980. After expending considerable sums in
its renovation, he obtained the City’s authorization to operate “a[] hotel of 66 Rooms.”
His application for exemption from the Ordinance was denied in 1983, whereupon
Bullock fired the opening gun in what has become a litigation war with the City
concerning the Abigail and the Ordinance.
       In 1988, after Bullock had failed in all his attempts at relief from the trial court and
had appealed to this court, the City commenced an action to enforce Bullock’s
compliance with the terms of the Ordinance, most particularly to end his operation of the
Abigail as a “tourist hotel.”1 Bullock then tried to invoke the Ellis Act (Gov. Code,

1  It seems uncontradicted that by renting to tourists Bullock would generate more
income and would not have long-term tenancies subject to rent control.

§ 7060 et seq.) in the belief that it authorized him “to go out of the business of residential
rentals . . . and thereafter to operate entirely as a transient [tourist] hotel.” The trial court
found this argument unpersuasive and issued an injunction as requested by the City.
(Bullock I, supra, 221 Cal.App.3d at pp. 1080-1085.)
       Not all of the extensive opinion in Bullock I is pertinent here. What is relevant are
our holdings that: (1) the Ordinance was not unconstitutional on its face and could be
applied to Bullock (Bullock I, supra, 221 Cal.App.3d at pp. 1086-1087, 1089); (2)
Bullock had stated a cause of action under section 1983 for alleged discriminatory “spot
zoning” in retaliation for his exercise of constitutional rights, and for the manner in which
the Ordinance was administered (id. at pp. 1087-1093); and; (3) the “one-for-one
replacement” provision of the Ordinance could not be applied to Bullock once he invoked
his right under the Ellis Act to discontinue renting residential units (id. at pp. 1099-1102).
We therefore reversed the injunction and the general demurrer to Bullock’s section 1983
cause of action.
       By the time our remittitur issued, Bullock was in bankruptcy. Although the hotel
had been sold,2 Bullock in effect bought the section 1983 cause of action from the estate,
but any proceeds obtained will be used to satisfy creditors. That cause of action was set
forth at great length as a cross-complaint to the City’s pending enforcement action.
       Bullock put the retaliation issue in play when he moved for summary adjudication
in his favor on the City’s affirmative defense that it had acted in good faith. The City
opposed the motion on various grounds, one of which was that “a triable issue of fact
exists” as to whether the rezoning of Bullock’s hotel was retaliatory or discriminatory.
The trial court denied Bullock’s motion, “there being a triable issue of fact as to whether
the City acted in good faith.” 3

2  The hotel was sold in June of 1990 for $2.4 million; Bullock’s expert valued it at $17
3 Approximately six months earlier the trial court had denied a motion for summary
judgment by Bullock’s bankruptcy estate.

       All pending actions were then consolidated and assigned to Judge Mitchell for all
purposes. The City again moved for summary disposition, arguing that the hotel “was not
rezoned or ‘spot zoned’ in retaliation for Bullock’s exercise of his First Amendment
rights.” Concluding “there is no evidence” of illegal “spot zoning” or retaliation, Judge
Mitchell granted summary adjudication in favor of the City on Bullock’s cross-complaint
to the City’s enforcement action. The City thereupon moved for, and Judge Mitchell
granted, judgment on the pleadings on all of Bullock’s pending actions against the City.
After the City dismissed its enforcement action, a single judgment was entered against
Bullock, who then perfected this timely appeal.
       An initial matter to be addressed is Bullock’s argument that he was deprived of
discovery which would have aided him in defeating the City’s motion for summary
adjudication of his civil rights claim.
       As will be seen, the heart of that claim concerns a zoning decision made by the
City’s board of supervisors. Louise Renne was on the board at the time and voted for that
decision. She subsequently became city attorney, responsible for enforcing both the
Ordinance and the zoning decision.
       Three days before the City filed its summary adjudication motion, it filed a motion
for a protective order that would prevent Bullock from deposing Renne. With respect to
the enforcement action, the City argued that “Bullock intends to inquire directly into the
mental impressions, legal opinions, and knowledge of the City Attorney. The City asserts
that her knowledge of the issues on which Bullock seeks to depose her in her capacity as
City Attorney is based upon, and protected by, the attorney-client and work-product
privileges.” Concerning the zoning decision, the City argued that “Bullock intends to
question Ms. Renne regarding the evidence she considered and her mental processes prior
to her vote on such legislation, in addition to her actions in regard to the City’s
enforcement suit against Bullock. . . . The deposition must be barred because Ms.

Renne’s knowledge of the issues on which Bullock seeks to depose her in her capacity as
Supervisor is based upon, and protected by, the absolute legislative privilege. Moreover,
although Ms. Renne is now the City Attorney, her knowledge regarding Bullock’s
decade-long defiance of the Residential Hotel Ordinance is inextricably entwined with
her knowledge of Dr. Bullock’s actions that she gained as a legislator. Therefore, Ms.
Renne cannot be examined regarding these areas of inquiry.”
       While this motion was pending, the City moved for a second protective order, this
time concerning Bullock’s requests for documents and admissions, and responses to
interrogatories. The grounds were that “the information sought is overbroad and unduly
burdensome, irrelevant, protected by the attorney-client, attorney work-product and the
absolute legislative privilege[s], and that the discovery is intended solely to harass the
City and to interfere with the City’s trial preparation.”
       The trial court granted both requests for protective orders. The trial court’s rulings
are reversible only for abused discretion. (E.g., Moskowitz v. Superior Court (1982) 137
Cal.App.3d 313, 317.) Bullock contends not only that the trial court abused its discretion,
but “events . . . suggest that the court . . . did not in fact exercise discretion, but rather
automatically granted the City’s motions for these protective orders.”
       Bullock argues that the trial court denied him “the opportunity to cross examine
[the City Attorney] by a ruling in chambers never embodied in a formal order.” There is
no reporter’s transcript of proceedings attending this ruling. We presume the trial court
performed its duty of exercising its discretion on the matter before it. (Evid. Code,
§ 664.) In order to rebut this presumption Bullock would have to provide us with a record
adequate to demonstrate error. He did not, and this part of his contention fails
accordingly. (E.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.)
       Bullock will not prevail on the merits of the remainder of his contention.
       Courts will not require legislators to testify concerning reasoning, motivations, or
other factors behind a specific vote. (E.g., County of Los Angeles v. Superior Court
(1975) 13 Cal.3d 721, 726-729.) Renne thus could not be questioned with respect to the

adoption of the zoning ordinance. When Renne subsequently assumed the office of city
attorney, she gained an additional layer of armor. The head of a government agency can
be deposed in his or her official capacity only if there are compelling reasons. (E.g., State
Board of Pharmacy v. Superior Court (1978) 78 Cal.App.3d 641, 644.) This is doubly
true when the agency head is opposing counsel in pending litigation. (E.g., Spectra-
Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1493-1494.)4
       It is clear from Bullock’s papers opposing a protective order that he intended to
question Renne about her vote for the Ordinance. Those papers also show that Bullock
did not give the trial court a compelling justification for interrogating Renne in her role as
city attorney. He did not, for example, advise the court that he had tried and failed to
determine from other sources what lay behind either adoption of the Ordinance or
initiation of the City’s enforcement action.
       With respect to the protective order granted for most of Bullock’s other discovery
demands, the City advised the court that: (1) the City “has already responded to 238
requests for admission and corresponding form interrogatories, 84 inspection demands, 20
special interrogatories and has already produced more than 5,000 documents,” (2)
“Bullock himself has produced more than 22,000 documents to the City,” and (3)
“counsel for Bullock has strenuously represented that Bullock is fully prepared . . . [for]
trial.” It would take a very strong case to make out an abuse of discretion with
circumstances like these. Bullock’s arguments in his brief do not contain the specifics
needed to overturn this type of fact-intensive discretionary decision.5

4  Examination of the California decisions cited in this paragraph will show that the
principles mirror those of federal authorities.
5 “The court below abused its discretion in denying Dr. Bullock responses to this closing
discovery. It would have greatly simplified the proceedings at trial, the very purpose of
requests for admissions. . . . [¶] [T]he closing round of discovery would have provided
Dr. Bullock with admissions that raised issues of fact in connection with the summary
adjudication. . . . [T]his last round of discovery also focused on new matter brought up
only in the summary adjudication motion . . . . [A] close examination of the denied
discovery should persuade this Court that this [] judgment must be reversed . . . .”

       Bullock contends that because the city attorney provided neither a declaration nor
deposition in support of the City’s summary adjudication motion, the trial court was
required to draw an adverse inference against the City because it had in effect failed to
produce its most potent evidence. Bullock cites a number of decisions, all of which are
distinguishable. This is not a criminal case (United States v. Lawrenson (4th Cir. 1962)
298 F.2d 880; Horner v. State of Florida (M.D. Fla. 1967) 312 F.Supp. 1292). It is not a
labor case (McLeod v. Local 282, International Bro. of Teamsters, etc. (E.D. N.Y. 1964)
241 F.Supp. 831). It is not the ordinary civil case between private parties (Getty Oil
Company v. Mills (W.D. Pa. 1962) 204 F.Supp. 179). It is not a case for equitable relief
(United States v. Mintzes (D. Md. 1969) 304 F.Supp. 1305). Bullock has been stymied by
what in practical effect are a pair of privileges protecting Renne from being obligated to
produce evidence. He now asks that the City be penalized for a nonparty’s exercise of
privilege. This is not required and is contrary to sound policy. (See Evid. Code, § 913; 2
Wigmore, Evidence (Chadbourn ed. 1979) § 286, p. 201.)
       In support of its summary adjudication motion the City submitted a declaration by
Deputy City Attorney Dan Siegel. The gist, for present purposes, was that the
enforcement action was commenced in 1988 “solely and exclusively on the evidence of
Peter Bullock’s apparent and flagrant violations of the ordinances, and for no other
reason” and not, as Bullock alleged, at the instigation of the Tenderloin Housing Clinic.
Seventeen months after the trial court had granted the City’s summary adjudication
motion, twelve months after the City’s motion for judgment on the pleadings had been
granted, but before a formal judgment had been entered, Bullock noticed a motion to
“reconsider summary adjudication” on the ground that Siegel’s declaration was false.
The trial court agreed with the City that Bullock’s request for reconsideration was
untimely, and denied the motion on that basis. Bullock now contends that the motion was
timely and that it was an abuse of discretion to deny it on its merits.

       Bullock moved “for reconsideration pursuant to Code of Civil Procedure § 473.”
That provision has a six-month period for seeking relief, and that period is jurisdictional.
(E.g., Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 735, fn.
3.) As Bullock’s motion was clearly made long after that period had expired, the trial
court had no jurisdiction to grant it. The merits of the motion are therefore moot.
       Municipalities may be liable under section 1983 for the adoption of an ordinance
that results in the deprivation of a constitutional right or privilege.6 (Pembaur v.
Cincinnati (1986) 475 U.S. 469, 480; Monell v. New York City Dept. of Social Services,
supra, 436 U.S. 658, 690.) This general principle applies to legislative decisions
concerning land use. (E.g., Bateson v. Geisse (9th Cir. 1988) 857 F.2d 1300, 1303; Evers
v. County of Custer (9th Cir. 1984) 745 F.2d 1196, 1203-1204.)
       In Bullock I, we held that Bullock had stated a cause of action pursuant to section
1983 with his allegations that the City had retaliated against his partially successful (i.e.,
he had obtained a preliminary injunction) efforts against the Ordinance by spot-zoning7

6   The statute provides in pertinent part: “Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law . . . .” A city is deemed a
“person” for purposes of section 1983. (Monell v. New York City Dept. of Social Services
(1978) 436 U.S. 658, 690.)
7 The City chides us for misusing the term, which is ordinarily taken to mean zoning a
parcel of property in such a way as to give it an exemption from general classification
plans or disadvantages not shared by neighbors. (See 8 McQuillin, Municipal
Corporations (3d ed. 1991) § 25.83, pp. 307-309.) The City may be abstractly correct, but
it does not dispute that our usage conveys a larger truth—a zoning decision defensible in
the abstract may acquire a constitutional taint from circumstances of animus or effect.
(See, e.g., Nectow v. Cambridge (1928) 277 U.S. 183 [due process violated by zoning
part of lot residential and remainder unrestricted, thus effectively destroying property’s
value]; Edgewood Civic Club v. Blaisdell (N.H. 1948) 61 A.2d 517 [ordinance
reclassifying single residence at owner’s request as “business district” invalidated as spot
zoning and grant of special privilege].)

his property. The issue now before us is whether Bullock presented sufficient evidence to
get this claim to a jury. We agree with the trial court that he did not.
       The fact situation Bullock wants to put before a jury is this: In March of 1985 the
City established the “North of Market Residential Special Use District.” Like the
Ordinance, the purpose of this zoning measure was to preserve the stock of residential
hotels and halt the number of conversions to tourist hotels. Bullock’s property was not
included in the district when it was established; other hotels on the same block were
included. Following reclassification action by the planning commission, an ordinance to
amend the district’s boundaries to include Bullock’s hotel was introduced in May of
1985. When the board of supervisors first considered this measure in September of that
year, one of the supervisors (Quentin Kopp), asked for the city attorney’s opinion as to
the status of Bullock’s pending litigation against the City. Deputy City Attorney
Pennypacker responded with a letter advising that Bullock had obtained a preliminary
injunction against enforcing the conversion ordinance and that “At the present time[] we
are in the midst of discovery in this case.”
       At the end of September the board resumed consideration of the amending
ordinance. Supervisor Kopp expressed the opinion that the measure was “spot zoning”
and discriminatory. Deputy City Attorney Pennypacker told the board in effect that the
amendment was needed because Bullock “might otherwise prevail” in his pending
litigation. Kopp remembers Supervisors Britt and Walker as saying the zoning
amendment would stop Bullock from circumventing the conversion ordinance. The
measure passed its second reading with a 6 to 2 vote, with 3 supervisors absent. It was
adopted the following week by 10 supervisors; Kopp was the only No vote.

       In any event, as will be seen, the existence of spot zoning is not necessarily
conclusive on the issue of legality. (See Wilkins v. City of San Bernardino (1946) 29
Cal.2d 332, 341 [legitimate spot zoning can give parcel greater uses than enjoyed by
adjoining parcels].) As the leading treatise writer on the subject put it, “‘spot zoning’
does not bear magical import” but “is a descriptive term, and may be valid or invalid,

       This is the general outline of Bullock’s version. He is also very interested in
demonstrating that the driving force behind the amending ordinance was personal
hostility to him. In opposition to the City’s summary adjudication motion Bullock
submitted declarations by three of the supervisors (Kopp, Silver, and Kennedy),8 a
deposition by Kopp, and declarations by Bullock’s attorney and another person who were
present at the second September meeting of the board.
       Both Kopp and Silver stated in their declarations that the board was told by Deputy
City Attorney Pennypacker that “the rezoning was appropriate because [Bullock] might
otherwise prevail in a pending lawsuit.”9 Jerry Matters stated in his declaration that what
Pennypacker said was that Bullock “might win the suit.”
       According to former Supervisor Kopp, “The spot zoning of [Bullock’s property]
was enacted, over my objections, in retaliation for its owner having exercised his rights,
including the right to seek judicial relief.” Former Supervisor Silver states: “In the
context of official concern in San Francisco with the conversion of residential hotels into
tourist hotels, it was then the general consensus on the Board that Dr. Bullock was the
paradigm ‘bad guy,’ that he had defied the Ordinance, and that he should be punished for
getting around its intent with legal tricks.” Former Supervisor Kennedy has a similar
recollection: “At the time of the vote of the . . . Board of Supervisors, there was a general
feeling on the Board that the owner of the hotel was a ‘bad guy’ who had used the law to
frustrate our policies for the preservation and creation of residential housing.”
       Bullock’s attorney, John Maatta, declared that he addressed the Board “on behalf
of Dr. Bullock. In general, I argued that the re-zoning . . . was improper in that it

dependent upon the facts of the particular case.” (2 Yokley, Zoning Law and Practice
(4th ed. 1978) § 13-5, pp. 235, 239.)
8 The declaration furnished by another former supervisor, Doris Ward, is very brief; the
only relevant portion is that the “rezoning . . . was unfair to Dr. Peter Bullock . . . in part
because it deprived his newly rehabilitated tourist hotel of all commercial use above the
first floor of his hotel, where the guest rooms were located.”
9 This excerpt is from the Silver declaration. The Kopp declaration is identical, except
that what Silver called “rezoning” Kopp terms “spot zoning.”

constituted illegal spot-zoning, and was wrongfully motivated. In reply to my argument,
Supervisor Carol Ruth Silver responded by saying something to the effect of: ‘Well, Dr.
Bullock defied the [hotel conversion] ordinance.’ [¶] I replied, in substance, that Dr.
Bullock did not defy the ordinance but was only exercising his absolute right to petition
the courts for the redress of an egregious wrong. [¶] I took Supervisor Silver’s statement
to mean that [Bullock’s property] was in fact being re-zoned by the city because Dr.
Bullock had successfully obtained an injunction against the hotel conversion . . .
ordinance and was preceeding [sic] with a suit against the City . . . on that issue.”
       Kopp reiterated in his deposition the essential points made in his declaration: the
rezoning was motivated by animus towards Dr. Bullock and by the City’s apparent fear
that he was likely to prevail in his pending litigation against the City’s efforts to enforce
the Ordinance. “They were trying to get Dr. Bullock. They didn’t like Dr. Bullock . . .
[T]hey were going to teach him a lesson . . . . [T]his would stop him.” “He had the
audacity to obtain a court order holding that the city’s conversion ordinance was
unconstitutional. And he’d be punished for it.”
       The parties have devoted considerable discussion in their briefs to the issues of the
admissibility of this evidence and whether the City’s objections to Bullock’s evidence
was sustained by the trial court. It is not necessary to resolve these questions. In order to
prevail Bullock would need evidence showing that a majority of the supervisors voted as
they did for a constitutionally prohibited motive. To this end Bullock would need
evidence that could only come from those supervisors accompanied by an explanation of
each supervisor’s vote. In short, Bullock would need evidence from at least six
supervisors stating in effect “I voted to rezone to punish/retaliate/make an example of
Bullock.” The materials Bullock produced, assuming they were admissible, would not be
germane to this, the dispositive legal question. Apart from Kopp’s evidence as to why he
voted as he did, Bullock produced no legitimate evidence establishing why the rest of the

board adopted the rezoning ordinance, much less that the vote was motivated by
retaliation. 10 The trial court thus did not err in granting this part of the City’s motion. 11
       We noted in Bullock I that “A violation of section 1983 does not occur if
municipal action is merely vigorous or overzealous law enforcement. On the other hand,
if the conduct is unjustified harassment it becomes actionable.” (Bullock I, supra, 221
Cal.App.3d at p. 1090 [citations omitted].) From November 1984 through June 1990
(when the hotel was bought by a new owner), the City, in the belief that Bullock was
violating the Ordinance, had several liens placed against his hotel. Bullock alleged that
the City thereby “denied [him] fundamental fairness and equal protection, and damaged
him” with adverse financial consequences up to and including “forcing sale in bankruptcy
for a fraction of what the hotel should and would have been worth” (see fn. 2, ante).
Bullock contends that “A triable issue of material fact arose on Dr. Bullock’s evidence
that the City maintained liens as part of its retaliation against him.”
       The City’s evidence in support of summary adjudication on this point consisted of
the declaration by Public Works Inspector Peter Burns, and accompanying exhibits. The
City maintained in its separate statement of undisputed facts that this evidence
demonstrated that the liens were “based on Bullock’s continuous refusal to comply” with

10   “Retaliation” in this context should be understood as the same as “punishment,”
which should dispose of Bullock’s suggestions that the zoning ordinance amounted to
“legislative punishment” and thus a bill of attainder. Insofar as Bullock is unable to raise
a triable issue that the board adopted the rezoning ordinance with a retaliatory motive, he
is equally unable to show that the motive was to punish him for exercising constitutional
11 At various points in his briefs Bullock refers to our previous decision as having
established that he is entitled to put his civil rights cause of action before a jury. This is
incorrect. All we decided was that it was error to sustain a general demurrer to Bullock’s
section 1983 claim because it appeared he was able to state a cause of action. (Bullock I,
supra, 221 Cal.App.3d at pp. 1090-1093). We specifically noted: “Whether [Bullock] is
able to substantiate his allegations is an issue which must await future developments.”
(Id. at p. 1103.) What this appeal establishes is that Bullock had a good pleading but not
the capacity to prove illegal spot zoning.

various ordinances and regulations. Bullock responded with what appear to be excerpts
from a deposition given by “Inspector Torres-Gil” purportedly establishing that Bullock
was in full and total compliance by 1987, but the City refused to release its liens.12
       Torres-Gil appears to have had some knowledge of the controversy between
Bullock and the City, but the excerpts do not establish precisely who Torres-Gil is, what
responsibility he had, or when he had it. Much of his testimonial excerpts appear to be
read from documents (which Bullock did not produce) and are in near-indecipherable
bureaucratic shorthand. The crucial passage (“[Sept. 29, 1987] RT-G. PA 8413 -- 12685
expired. Superseded by 8508333. Copy of unsigned C of C’s to Rick Judd DCA for his
review prior to final signature. RT-G.”) is ostensibly explained: “Q. Now, that means,
does it not, that the Certificate of Completion was ready to be issued but for a signature;
is that right? A. Yes, you could say that.”
       Wholly apart from these and other evidentiary objections raised by the City, this
material begs for answers from someone other than Torres-Gil. If a Certificate of
Completion—which presumably would oblige the City to release liens placed against
Bullock’s hotel—had in fact reached the stage where only a deputy city attorney’s sign-
off remained to be done, the focus would shift to what happened then. What Torres-Gil
said does not establish either: (1) that the sign-off did not in fact occur, or (2) if there was
no sign-off, what the reason was. Obviously, “Rick Judd” would be the obvious person to
look to for answers to these questions, but Bullock’s opposition is limited to the
fragments of Torres-Gil’s deposition testimony. Most tellingly, Torres-Gil does not
establish from personal knowledge that there could be no valid reason for City retaining
the liens.

12  Bullock’s attorney did not attach the actual pages from Torres-Gil’s deposition to his
(the attorney’s) authenticating declaration; instead, the excerpts were simply typed into
the declaration. The City did not object to this unorthodox mode of presentation.
        In his brief Bullock relies on various materials in the record which were not
identified in his separate statements of disputed facts as pertinent to the lien issue. These

       The City’s evidence consists of business records in Mr. Burns’s custody. These
documents, and reasonable inferences derivable therefrom, support the City’s position.
They show that the Ordinance authorizes imposition of liens for violations of its
provisions. (S.F. Admin. Code, § 41.20, subd. (d).) They show that up until the property
was sold during bankruptcy, Bullock was constantly deemed in violation of the Ordinance
by the City. Even the source of Bullock’s only evidence, Inspector Torres-Gil, stated in
effect in a 1990 declaration that all the violations noted in 1984 had been resolved
“except the owner’s non-compliance with the . . . Ordinance. . . .” These materials
establish a reasonable, nonretaliatory purpose for the City’s liens on Bullock’s property.
Bullock’s opposing material does not come close to meeting the City’s evidence. Bullock
therefore did not have a triable issue of material fact concerning whether the City’s
enforcement of the Ordinance amounted to unjustified harassment.
       Bullock alleged that the City had denied him access to “public record files” in
order to “frustrate . . . punish and retaliate against . . . BULLOCK for his exercise of his
legal rights.” The City sought summary adjudication on the ground that it had policies
requiring a written request and limiting access to two files per day which were applied to
all members of the public and did not amount to a policy that applied only to Bullock.
Although this particular aspect of Bullock’s civil rights claim goes unmentioned in the
trial court’s order granting the City’s motion, the bottom-line of that ruling clearly
amounts to a determination against Bullock on this point. Bullock sees it as error.
       Bullock’s opposition to the motion was based on evidence purportedly showing
retaliation by the City. Those answers were not included in the record on appeal. Bullock
is thus unable to: (1) satisfy his burden of proving error by an adequate record (Ballard v.
Uribe, supra, 41 Cal.3d 564, 574-575), and (2) demonstrate that the City’s conduct
passed beyond legitimate enforcement and became harassment.

materials are excluded from consideration by reason of this omission. (See North Coast
Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-32.)

       As previously mentioned, our opinion in Bullock I included an extensive analysis
of the Ellis Act, which grants landlords the right to quit the rental business. The Act
gives municipalities the authority to require written notice and certain information from a
landlord invoking that right. (Gov. Code, § 7060.4, subd. (a).) In October of 1988
Bullock sent the City a notice that he intended to remove his hotel’s units from the
residential housing market. The City accepted the notice in November, but rejected it in
December on the ground that Bullock had not provided some of the information required
by the City. Bullock filed an amended notice in February of 1989; the City accepted it in
April of that year, but advised him that he would still be obliged to satisfy the one-for-one
replacement provision of the Ordinance. We held that this provision could not be
enforced against Bullock because it was superseded by the Ellis Act. (Bullock I, supra,
221 Cal.App.3d at pp. 1099-1102.) We warned the parties that while Bullock’s property
was still subject to zoning restrictions—including possibly the property’s inclusion in the
special zoning district—the City could not use these other statutes “as a pretext for halting
[Bullock’s] departure from the residential hotel business.” (Id. at pp. 1103-1104.)
       Bullock alleged as part of his civil rights cause of action that the City had
retaliated against him by: (1) its subsequent prosecution of the enforcement action
following acceptance of his Ellis Act filing (count four of Bullock’s cross-complaint), (2)
its rejection of his initial filing (count seven), and (3) insisting that he had to comply with
the one-for-one replacement provision (count eight).
       In the separate statement supporting its summary adjudication motion the City
identified only two “undisputed facts” relevant to these allegations. The first was that the
enforcement action was not retaliatory, but was commenced in good faith “solely and
exclusively on the evidence of Bullock’s apparent violations” of “valid and constitutional
and applicable” laws. The second was that “Bullock advised the City he intended to
operate [his property as] a tourist hotel after he filed the Ellis Act Notice.”

       Bullock responded that the City’s first “undisputed fact” of good
faith/nonretaliation was contradicted by the adverse inferences supported by City
Attorney Renne’s “silence” and by “the sequence of events.” Bullock challenged the
City’s second “undisputed fact” by noting that his initial Ellis Act filing was rejected the
day after he had opposed the City’s request for an injunction requiring compliance with
the Ordinance, telling the trial court that the City had accepted his filing.
       The trial court ruled for the City in these terms: “Counts Four, Seven and Eight
have no merit because the Ellis Act does not entitle Bullock to avoid the application of
and compliance with the Hotel Ordinance and . . . zoning laws.” In addition, as to Count
Four, “[t]he uncontradicted evidence reveals that the City’s enforcement complaint
against Bullock was based solely and exclusively on Bullock’s apparent violations of the
Hotel Ordinance, and not for purposes of retaliation.” Bullock claims error.
       The City produced considerable evidence that the enforcement action was
commenced in response to Bullock’s extensive and persistent noncompliance with
requirements of the Ordinance which had nothing to do with the one-for-one replacement
provision. As previously discussed, the absence of evidence from the city attorney
creates no inference favorable to Bullock. (See part II, ante.) Nor does Bullock’s
unexplained reference to “the sequence of events” constitute evidence contradicting the
City’s showing.
       The City rejected Bullock’s initial Ellis Act notice on the ground that it did not
provide information required by the regulation governing such notices. Bullock does not
defend the sufficiency of his initial filing, nor does he challenge the validity of the
regulation expressly authorized by the Ellis Act. Bullock provided the information
requested and his amended filing was accepted by the City. Nothing in these
circumstances suggest the City was employing pretext to disguise retaliation. The timing
of the City’s rejection to on-going litigation may appear puzzling, but Bullock points to
no consequence adverse to him.

       Bullock’s final allegation—that the City improperly continued to insist that
Bullock had to comply with the Ordinance’s one-for-one replacement provision even after
it accepted his Ellis Act filing—is materially imprecise. The timeframe of his claim is
presumably the period between the City’s second acceptance of his filing (April 1989)
and the finality of our decision in Bullock I (October 1990), by which time the hotel had
already been sold. (See fn. 2, ante.) Until that decision, however, there was no
authoritative construction on the effect of the Ellis Act vis-à-vis the Ordinance’s
replacement provision. The City was thus able to argue, as it did to the trial court, that its
contrary position as to the impact of the Ellis Act was asserted in good faith. Even before
this court reached the same conclusion, the Ordinance had survived a challenge to its
constitutionality. (Bullock I, supra, 221 Cal.App.3d at p.1089; Terminal Plaza Corp. v.
City and County of San Francisco (1986) 177 Cal.App.3d 892, 907-913.) Section 1983
does not authorize damages against a party who holds a legal opinion which is
subsequently shown to be erroneous. Good faith does not require prescience. (E.g.,
Procunier v. Navarette (1978) 434 U.S. 555, 561-563; Wood v. Strickland (1975) 420
U.S. 308, 321-322.)13
       A different approach also works to the City’s advantage. As previously
mentioned, section 1983 liability is premised upon violation of a constitutional right. The
constitutional right Bullock has always seen as trampled by the Ordinance is the right of
just compensation for private property taken by government. During the relevant
timeframe, the Ordinance, and its one-for-one replacement provision had not been held
unconstitutional. Quite the contrary, both had been found constitutional by Division One
of this court. (Terminal Plaza Corp. v. City and County of San Francisco, supra, 177
Cal.App.3d 892, 907-913.) To this day no reported decision finds the Ordinance causes a
takings violation. The possibility does exist, but only because of doctrinal developments

13  These decisions deal with the immunity enjoyed by individuals, something not at issue
here. Our research has found nothing which suggests that the good faith defense is not
available to municipalities.

occurring after Bullock no longer owned the hotel. (See Ehrlich v. City of Culver City
(1996) 12 Cal.4th 854; Dolan v. City of Tigard (1994) 512 U.S. ___ [114 S.Ct. 2309].)14
In short, the City could properly rely upon Division One’s decision that the Ordinance
was constitutional. This establishes its good faith defense.
       The remainder of Bullock’s contentions deal with the trial court’s granting of the
City’s motion for judgment on the pleadings. Only one of the grounds urged by the City
and accepted by the court applied to all of the other actions between Bullock and the City.
The City invoked the principle that Bullock’s civil rights claim, filed as a cross-complaint
to the City’s enforcement action, superseded all of his prior pleadings and became the
sole outstanding pleading Bullock had pending in the complete package of consolidated
actions. That principle is sound and dispositive. (E.g., Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 884.) It is particularly appropriate to apply that principle here;
having reviewed all of Bullock’s pleadings in the other actions and compared them with
the civil rights cross-complaint, we are convinced that the cross-complaint reiterates the
same substantive allegations of the earlier pleadings. Judgment on the pleadings was not
improper because it denied Bullock a trial on the merits of his claims. (Fisher v. City of
Berkeley (1984) 37 Cal.3d 644, 679, fn. 31.)
       The judgment is affirmed. The parties shall bear their respective costs of appeal.

                                                   Poché, Acting P.J.

We concur:
Reardon, J.
Hanlon, J

14 Moreover, Bullock specifically told the trial court that his civil rights cause of action
did not entail a challenge to the constitutionality of the Ordinance.


                           FIRST APPELLATE DISTRICT

                                   DIVISION FOUR

FRANCISCO,                                           A068409

       Plaintiff and Respondent,                     (San Francisco County Super.
                                                      Ct. No 898704, consolidated
v.                                                    with 802676, 809721, 825159,
                                                      825717, 847989, 848087, 851156,
PETER J. BULLOCK,                                     & 856680)

       Defendant and Appellant.                      ORDER MODIFYING OPINION,
                                                     DENYING REHEARING, AND
                                                     ORDERING PUBLICATION


     The opinion filed herein on November 1, 1996, is modified as follows:

     On page 12, line 1, the word “was” is deleted and the word “were” substituted.

     Appellant’s petition for rehearing is denied.

     Good cause appearing, the opinion filed herein is certified for publication.

                                               _______________________ P.J.

Trial Court:                  San Francisco County Superior Court

Trial Judge:                  Honorable Donald S. Mitchell

Attorney for Appellant:       Bartholomew Lee
                              Attorney at Law

Attorneys for Amicus Curiae
 In Support of Appellant:     James S. Burling
                              R. S. Radford
                              Mark T. Gallagher
                              Pacific Legal Foundation

Attorneys for Respondent:     Louise H. Renne
                              City Attorney
                              Kathryn J. Zoglin
                              Andrew W. Schwartz
                              Cheryl Weisbard Foung
                              Deputy City Attorneys


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