BORTEN

In Bisno v. Santa Monica Rent Control Bd. (2005) 130 Cal.App.4th 816 , 30 Cal. Rptr.3d 441 , we held that the Santa Monica Rent Control Law requires landlords to subsidize rent for those who reside principally in their rent controlled units, but not the rent of those who use their rental units for other purposes. We upheld the Santa Monica Rent Control Board's Regulation 3304, which permits a landlord to petition the Board for a determination that a tenant is not using a rental unit as his primary residence, which determination (if favorable to the landlord) entitles him to raise the rent to conform to the more lenient statewide rent control law. In the case before us on this appeal, we explain that Bisno necessarily defeats a Santa Monica landlord's constitutional challenge to the Board's involvement with a "tenant not in occupancy."

Lisa Borten, who owns an apartment building in Santa Monica, leased an apartment to Patricia Lard in 1995. At that time, Borten and Lard knew the apartment was subject to the Santa Monica Rent Control Law, and Borten knew Lard was living primarily in Texas. [1] In 2001, Borten filed a declaratory relief action against Lard, alleging there…

In Bisno v. Santa Monica Rent Control Bd. (2005) 130 Cal.App.4th 816 [ 30 Cal.Rptr.3d 441 ], we held that the Santa Monica Rent Control Law requires landlords to subsidize rent for those who reside principally in their rent controlled units, but not the rent of those who use their rental units for other purposes. We upheld the Santa Monica Rent Control Board’s regulation. 3304, which permits a landlord to petition the board for a determination that a tenant is not using a rental unit as his *1487 primary residence, which determination (if favorable to the landlord) entitles him to raise the rent to conform to the more lenient statewide rent control law. In the case before us on this appeal, we explain that Bisno necessarily defeats a Santa Monica landlord’s constitutional challenge to the board’s involvement with a “tenant not in occupancy.”

FACTS

A.

Lisa Borten, who owns an apartment building in Santa Monica, leased an apartment to Patricia Lard in 1995. At that time, Borten and Lard knew the apartment was subject to the Santa Monica Rent Control Law, and Borten knew Lard was living primarily in Texas. 1 2 In 2001, Borten filed a declaratory relief action against…

I write separately because my reasons for rejecting Borten’s arguments differ from the majority’s. In my view, Borten’s due process challenge fails because the application of the anti-eviction provisions to nonresident renters is rationally related to a legitimate government purpose.

First, Borten errs when she assumes that in order to survive due process review, the anti-eviction provisions must be rationally related to the stated purpose of the rent control law (i.e., providing affordable housing for residents). Under rational basis review, all that is required is a rational relationship to some legitimate government purpose, not to the actual or stated purpose. (See, e.g., FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 314-315 [ 124 L.Ed.2d 211 , 113 S.Ct. 2096 ].)

Second, application of the anti-eviction provisions to nonresidents is rationally related to the stated purpose of the rent control law. The Supreme Court has found that eviction controls are “a reasonable means of assuring compliance with maximum rent limits,” so application of the anti-eviction provisions to residents is not open to serious challenge. (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129,…