Justin Goodman Featured in SF Apartment Magazine Legal Q&A for September 2017

Justin Goodman was featured in the Legal Q&A for the September 2017 issue of SF Apartment Magazine – the official publication of the San Francisco Apartment Association.

Justin discussed the ability of a landlord to prohibit tenants from posting signs that had the effect of driving away prospective renters, in the context of San Francisco’s Planning Code and the First Amendment.


SFAA is dedicated to educating, advocating for, and supporting the rental housing community so that its members operate ethically, fairly, and profitably. SFAA’s is a trade association whose main focus is to support rental owners by offering a wide variety of benefits that address all aspects of rental housing industry.

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California Legislative Update (2017) – AB 291 Prohibits Landlord Threats and Actions Based on Immigration Status

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AB 291 now imposes broad restrictions against threats by landlords (and attorneys) relating to immigration status. In addition to now making it lawful to “Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant”, the new law also provides for defenses to unlawful detainer actions where the tenant can establish that the landlord filed the action because of the tenants immigration status.

In fact, a tenant may establish this by showing that the action is based on any of the following:

(A) The failure at any time of a previously approved tenant or occupant to provide a valid social security number.
(B) The failure at any time of a previously approved tenant or occupant to provide information required to obtain a consumer credit report under Section 1785.11 of the Civil Code.
(C) The failure at any time of a previously approved tenant or occupant to provide a form of identification deemed acceptable by the landlord.

As some of these may innocuously relate to the landlord’s ability to verify the creditworthiness of their renters, both property managers and practitioners will want to be cautious in crafting three day notices as unlawful detainer complaints.

The full text of AB 291 is available here.

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Rosemary Court Properties, LLC v. Walker (Unpublished) – “Gatekeeper Duty” Justifies Reversal of Unlawful Detainer Judgment upon Failure To State Cause of Action

“Rosemary Court’s allegations that Parsi moved out of the premises and lived elsewhere for a time do not constitute termination under the lease or any law that we are aware of and, therefore, do not support Rosemary Court’s legal conclusion that Parsi terminated her leasehold interest. Rosemary Court relied on Walker’s purportedly unauthorized assignment of the lease to Parsi for its unlawful detainer cause of action, but regardless of any such assignment, by Rosemary Court’s own allegations, including the terms of the lease incorporated into the complaint by reference, Parsi was a colessee of a month-to-month tenancy who had moved out of the premises for a time, which remained occupied by Walker, and then moved back into the premises around the time that Walker moved out. These allegations establish only that Parsi was a colessee of the premises with an ongoing right to a month-to-month tenancy. Therefore, Rosemary Court did not state an unlawful detainer cause of action against Parsi.”

In Rosemary Court Properties, LLC v. Walker (unpublished), the First District Court of Appeal reversed the appellate division of the superior court decision upholding a default judgment in an unlawful detainer case against a co-lessee (Parsi) who, while temporarily out of occupancy, had resumed occupancy prior to the attempted termination of the tenancy. In so doing, the Court determined that the “gatekeeper duty” of the trial court required that it not enter a default judgment where the complaint is insufficient to state a cause of action.
Continue reading Rosemary Court Properties, LLC v. Walker (Unpublished) – “Gatekeeper Duty” Justifies Reversal of Unlawful Detainer Judgment upon Failure To State Cause of Action

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City of West Hollywood v. Kihagi (Unpublished) – Application of Ellis Act Constraints in the Context of Settlement Agreements

Infamous landlord Anne Kihagi tested the limits of Ellis Act re-rental constraints, as illustrated in the latest appellate decision chronicling her exploits, City of West Hollywood v. Kihagi. While withdrawing an 8-unit, rent controlled property in West Hollywood from the rental market, Kihagi harassed one of the tenants, prompting the City of West Hollywood to prosecute, leading to a settlement agreement governing the application of the Ellis Act.

For purposes of the Ellis Act, the property featured several “classes” of rental units: four were unoccupied, four were occupied, and one of the occupied units claimed an extension of the withdrawal date (as tenants who are disabled or at least 62 are entitled to do). The Ellis Act uses a floating definition for the “date of withdrawal”, which could be as early as the landlord files the notice of intent or as late as the extended termination of tenancy. Further, while the Ellis Act imposes vacancy control constraints for five years and requires a “first right of refusal” for ten, these restrictions do not appear to apply to rental units that are unoccupied at the time of withdrawal. (For those, arguably only a two year re-rental restriction applies – or perhaps even no restrictions at all.)

Despite entering a settlement agreement with potentially more restrictive terms, Kihagi re-rented units after the five-year vacancy control restrictions would have expired under the Ellis Act. The Court of Appeal first noted that landlords’ agreements to waive rights under the Ellis Act are void, citing Embassy LLC v. City of Santa Monica (2010) 185 Cal.App.4th 771, 777, but ultimately determined that Kihagi had re-rented outside of the Ellis Act constraints.

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Ayala v. Dawson – First District Court of Appeal Finds Would-Be Buyer Collaterally Estopped To Claim Interest in Property Following Unsuccessful Eviction Defense

“Ayala could have moved to consolidate the unlawful detainer proceeding with this action, thus requiring the court to determine whether the issues presented were so complex and so intertwined with the issue of title that ‘the entire case [should be] treated as an ordinary civil action, not as a summary proceeding’ (Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 387), but he did not do so. Instead, he ‘acceded to the summary and expedited procedures of unlawful detainer with respect to’ his claim to equitable title.”

In Ayala v. Dawson, the First District Court of Appeal navigated the collateral estoppel created by an unlawful detainer defendant’s litigation of his ownership of the property while simultaneously seeking to litigate his own breach of contract claims.
Continue reading Ayala v. Dawson – First District Court of Appeal Finds Would-Be Buyer Collaterally Estopped To Claim Interest in Property Following Unsuccessful Eviction Defense

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SF Examiner reports on Potential “Code Enforcement Nightmare” as First Soft Store Retrofit Deadline Approaches

September 15th is the first deadline for “Tier One” property owners to submit permit applications for work under the City’s mandatory seismic retrofit program – a 2013 ordinance that requires owners of certain multiunit wood-frame buildings with “soft stories” (i.e., open space first floors that are weaker and more flexible than the stories above) to reinforce the structure to increase resiliency in the event of an earthquake.

The SF Examiner reports that, “Failure to comply with the Sept. 15 deadline will come with penalties. For instance, The City would post an ‘Earthquake Warning’ placard on the property and issue a notice of violations. After the 30-day notice, The City can assess monetary penalties along with putting a lien on the property”.

Property owners can search the Department of Building Inspection website to determine the compliance tier and associated deadline for their buildings.

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SF Gate Reports on City Attorney Lawsuit Against Owner and Master Tenant of “Death Trap” Basement Apartments Below Outer Mission Laundromat

SF Gate reports on a lawsuit by City Attorney Dennis Herrera against the owner and master tenant of a mixed use property in the Outer Mission, where 20 people rented space in a “windowless basement” below a Laundromat. The City brought the lawsuit after uncured violations of City fire, electrical and plumbing cods, and operating a public-nuisance building. The violations evoke last year’s Ghost Ship fire in Oakland.

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Hart v. Darwish – Second District Applies “Interim Adverse Judgment” Rule To Reject Malicious Prosecution Claim

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Hart v. Darwish reviewed a trial court’s determination on a motion for judgment on the pleadings that property owners had not maliciously prosecuted an unlawful detainer action: “To state a claim for malicious prosecution, a person must demonstrate that its adversary initiated a prior action (1) that was terminated in the person’s favor, (2) that the adversary brought the prior action ‘without probable cause’, and (3) that the adversary did so with ‘malice’.”

However, courts will look to what happened in the prior action for indicators that it was legally tenable. In fact, certain substantive rulings will give a near-conclusive effect to certain verdicts or rulings in the former plaintiff’s favor, indicating that there was probable cause in prosecuting the action, even though it ultimately terminated in the former defendant’s favor. This is known as the interim adverse judgment rule.
Continue reading Hart v. Darwish – Second District Applies “Interim Adverse Judgment” Rule To Reject Malicious Prosecution Claim

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Solomon v. Dominguez-Konopek – Second District Court of Appeals Disapproves of Trial Court’s “Split the Baby” Equitable Remedy in light of Rent Board Issue Preclusion

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In an unpublished decision, Division Five of the Second District Court of Appeals ruled that the trial court in a declaratory relief action was not permitted to fashion a compromise equitable remedy to balance a landlord’s predecessor’s imposition of unlawful rental rates and a tenant’s entitlement to equitable offsets for past overpayments going beyond the statute of limitations. Interestingly, the court made this determination on collateral estoppel principles.
Continue reading Solomon v. Dominguez-Konopek – Second District Court of Appeals Disapproves of Trial Court’s “Split the Baby” Equitable Remedy in light of Rent Board Issue Preclusion

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