Category Archives: First District Court of Appeal

Geraghty v. Shalizi (2017) – Landlord-Tenant “Buyout Agreements” Are Not “Non-Fault Evictions” and Tenants May Waive Rent Ordinance Rights To Settle Disputes

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“Looking at the history of the city’s legislation concerning landlord-tenant buyout agreements and the case law concerning these agreements, the conclusion is inescapable that these agreements have been utilized and honored for decades. The city has plainly taken this view of its rent ordinance.”

UPDATE: The First District has certified Geraghty v. Shalizi for publication.

In the landmark case, Kaufman v. Goldman (2011) 195 Cal. App. 4th 734, Division One of the First District Court of Appeal resolved that, even though the San Francisco Rent Ordinance purports to void any waiver of tenant rights under the Rent Ordinance, the settlement of a lawsuit will suffice to circumvent that rule. It reasoned that, “Parties frequently settle landlord-tenant disputes, and move-out provisions are not uncommon. If [the anti-waiver provision] were deemed to apply to such move-out provisions, this would have a chilling effect on future settlements of unlawful detainer actions as landlords would have little incentive to enter into pre-litigation negotiations”.

Geraghty v. Shalizi featured such an agreement, and once again, Division One was faced with the question of whether to enforce the protections of the Rent Ordinance against a landlord, in light of the anti-waiver provisions, or to give deference to an agreement for possession that was freely negotiated between the parties.

Ultimately, Geraghty v. Shalizi applied the same rule as Kaufman v. Goldman – the settlement of a lawsuit is the exception to the rule against voiding a waiver of rights – and it did so, despite several different circumstances.
Continue reading Geraghty v. Shalizi (2017) – Landlord-Tenant “Buyout Agreements” Are Not “Non-Fault Evictions” and Tenants May Waive Rent Ordinance Rights To Settle Disputes

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Contreras v. Dowling (2016) – Anti-SLAPP Protection for Attorney-Client Relationships in the Face of “Unadorned” Allegations of Attorney-Client Conspiracy

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“We decline to infer Dowling’s concurrence in his clients’ acts from the mere existence of their attorney-client relationship. Contreras cites no authority holding that an attorney-client relationship is evidence of a conspiracy between the attorney and client, and our own research discloses none. Moreover, we share Dowling’s expressed concern about the implications of such a holding. He contends there will be a chilling effect on attorneys if their communicative acts can be placed outside the protection of section 425.16 by the unadorned allegation that they conspired in their clients’ torts. Contreras airily dismisses this concern, arguing ‘any chilling effect that conclusion may have on conspiracies between lawyers and their clients must be counted an unalloyed benefit.’ We are not so sanguine. ‘The fears of chilled speech and hindered justice are too much a part of our case law to be disregarded as unproved.’ . . . We refuse Contreras’s invitation to infer an attorney-client conspiracy from the mere existence of an attorney-client relationship.”

California’s Anti-SLAPP Law (Cal. Code Civ. Proc., §425.16) is designed to question, at an early stage of litigation, whether certain claims that arise from a defendant’s petitioning conduct has sufficient, minimal merit to proceed. If not, the defendant may use a special motion to strike to eliminate certain claims that the plaintiff cannot prevail on.

“Petitioning conduct” can refer to a fairly wide-range of a defendant’s exercises of free speech rights. When that defendant is also an attorney, and the conduct is closely connected with her provision of legal advise in the context of an attorney-client relationship, this activity should fall squarely within the ambit of the anti-SLAPP statute.

Nonetheless, the landlords in the controversy underlying Contreras v. Dowling engaged in activity that allegedly constituted wrongful eviction. And, because they had counsel at the time of the alleged tort, the tenant sued the landlords for the wrongful eviction and sued the attorney, Dowling, for “conspiracy” to commit the tort.

Continue reading Contreras v. Dowling (2016) – Anti-SLAPP Protection for Attorney-Client Relationships in the Face of “Unadorned” Allegations of Attorney-Client Conspiracy

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Tom v. City & County of San Francisco (2004) 120 Cal. App. 4th 674 – Constitutionally Protected Right to Privacy for TIC Agreements with Exclusive Rights of Occupancy

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Multiple owners of a multi-unit, tenant-occupied building will sometimes invoke the Ellis Act in order to terminate tenancies so that each owner can live in a particular unit in the building. While each owner would own a percentage of the entire parcel/building, each will enter a contract (known as a “TIC” or “tenancy-in-common” agreement), which will allow them to designate a specified unit to a particular owner.

In 2001, San Francisco sought to prohibit this practice by adopting Ordinance 161-01, amending the Subdivision Code to eliminate “exclusive rights to occupancy” (i.e., designating that a particular owner was allowed to use a particular unit) and requiring that TIC agreements be recorded for purposes of enforcement/regulation. The logic of the amendment was that, if multiple owners cannot exclude other owners from their own units, the TIC rights would essentially be valueless, and maintaining buildings as rental units would be the preferred use.

Then Mayor Willie Brown vetoed Ordinance 161-01, citing concerns as to its validity and wisdom, but the Board of Supervisors overrode his veto. TIC owners challenged Ordinance 161-01, alleging that it violated the Ellis Act, as well as their rights to privacy.

The First District Court of Appeals affirmed, in the published decision Tom v. City & County of San Francisco (2004) 120 Cal. App. 4th 674, finding a protected “autonomy privacy” interest in “choosing the persons with whom a person will reside, and in excluding others from one’s private residence”. Meanwhile, it found that the City’s choice to preclude homeowners from going out of the landlord business under the Ellis Act was not a sufficient countervailing interest justifying such an extreme privacy violation.

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