Category Archives: Unlawful Detainers

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Rosemary Court Properties, LLC v. Walker (Unpublished) – “Gatekeeper Duty” Justifies Reversal of Unlawful Detainer Judgment upon Failure To State Cause of Action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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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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Assembly Members Chiu, Bonta, Gonzalez Fletcher and Kalra Introduce AB 291 – A Bill Amending Landlord-Tenant Law for Heightened Protections Relating to Immigration Status

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Assembly Members Chiu, Bonta, Gonzalez Fletcher and Karla have introduced AB 291 – a bill aimed at creating heightened protections for tenants relating to their immigration status. Specifically, a landlord is prohibited from harassing, intimidating or retaliating against a tenant on this basis, including by reporting their status (or the status of someone associated with them) to an enforcement agency. Landlords are also prohibited from even performing certain investigations relating to immigration status after the commencement of a tenancy, where violations create rebuttable presumptions in favor of a substantive defense to an eviction lawsuit.

The text of AB 291 as it currently exists is available here.

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North 7th Street Associates v. Constante: Rent Demand Notice Will Not Support an Unlawful Detainer Judgment for Possession of Non-permitted Units

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For decades, the Second District Court of Appeals case Gruzen v. Henry (1978) 84 Cal. App. 3d 515 has stood for the proposition that a landlord may not collect “rent” under a residential lease where the premises lacks a certificate of occupancy. These agreements are void, and landlords cannot enforce these void agreements, in the event the tenant stops paying rent, with an unlawful detainer lawsuit for recovery of the putative rental payment obligations. No rent can be owed on a void agreement.

Unfortunately, Gruzen, which reviewed entry of judgment for the plaintiff/landlord for past due rent and possession of the premises, only modified the judgment to strike the money damages. It otherwise allowed the landlord to recover possession. And this has led to some confusion, especially in San Francisco, where these “unauthorized dwelling units” are still somehow considered a valuable part of the City’s rental housing stock, despite their lack of permits or building code requirements to obtain permits.

North 7th Street Associates v. Constante thankfully clarifies the application of the ruling in Gruzen:

“[T]he court in Gruzen was never asked to decide – and did not decide – the issue we address here, namely, whether the three-day notice alleging past-due rent of $739.35 was fatally defective because defendant’s actual rent obligation was zero, and whether defendant was consequently entitled to summary judgment as a matter of law. It is axiomatic that an opinion is not authority for a proposition that was not considered in that appeal.”

In North 7th Street Associates v. Constante, a landlord issued a three day notice to pay rent or quit, based on the tenant’s failure to pay for several months of rent under the oral lease. When the tenant failed to cure the notice, the landlord filed an unlawful detainer lawsuit, demanding the past due rent and possession.

The tenant resisted the lawsuit, filing a motion for summary judgment and advancing “a January 29, 2015 housing inspector’s Notice of Abatement which found, inter alia, that defendant’s unit (in which he had lived for approximately 15 years) had been constructed without a building permit, that it was not authorized to be used as a dwelling, and that no certificate of occupancy was ever issued for it”.

On appeal, the landlord relied on Gruzen to argue that he was nonetheless entitled to possession (and that, essentially, that the tenant could keep the 800 bucks and get out). The Appellate Division of the Los Angeles Superior Court was not convinced:

“[I]f plaintiff could not collect any rent from defendant, then defendant had no obligation to pay any rent to plaintiff. Furthermore, if defendant did not owe any rent to plaintiff, the three-day notice claiming $739.35 in past-due rent was necessarily an overstatement of defendant’s rental obligation, which could only be properly calculated as zero. Since the three-day notice which was the basis for this unlawful detainer action failed to comply with the strict statutory requirements, it was invalid and could not support the action.”

It correctly noted that unlawful detainers are creatures of statute, and if you do not comply with the provision you invoke to get into court, you may not avail yourself of this summary proceeding for possession. Neither could the landlord simply terminate the tenancy, because – while it was not technically a “rental unit” – it is nonetheless covered by the Los Angeles Rent Stabilization Ordinance.

However, it does not follow that a tenant may live in an unpermitted unit, free from both evictions and the obligation to pay rent, indefinitely. In a footnote, the Appellate Division noted, “Plaintiff is, of course, not without a remedy in this circumstance since it may initiate an unlawful detainer to recover possession of the premises from defendant in order to comply with the January 2015 Notice of Abatement. (LARSO, § 151.09A, subd. (11).)”

Ultimately, the Appellate Division decision is only binding on other trial courts, but its interpretation of Gruzen is sound, and its ruling creates a common sense distinction between a tenant’s ability to resist obligations on a void contract and a landlord’s need to recover an unpermitted unit to either legalize it or demolish it.

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Beach Break Equities, LLC v. Lowell – Defendant’s Right to Restitution Hearing Following Reversal

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“As a general rule, when a judgment is reversed on appeal, the appellant is entitled to restitution for all things lost by reason of the judgment. This principle is embodied in California statutory law and settled equitable principles . . . When a landlord who has secured a writ of possession evicts a tenant before the appellate rights of the tenant have been exhausted, the landlord assumes the risk it will be subject to a full accounting and restitution if the judgment granting the writ of possession is reversed on appeal.”

Beach Break Equities is a cautionary tale to unlawful detainer plaintiffs to be strategic in how and when they recover possession.

Continue reading Beach Break Equities, LLC v. Lowell – Defendant’s Right to Restitution Hearing Following Reversal

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Hjelm v. Prometheus Real Estate Group, Inc. – First District Court of Appeals Instructs on the Importance of Following the Rules

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The opinion of the First District Court of Appeals in Hjelm v. Prometheus Real Estate Group, Inc. reads like a lecture to Prometheus and its counsel. It reviewed the history of the dispute between the parties – from the execution of improperly drafted lease, through the vacating of a mismanaged property, through an over-litigated case (with two motions for summary adjudication on the single issue of entitlement to fees), which culminated in a partially untimely appeal. Hjelm teaches important lessons to property managers and attorneys on how to avoid being penalized for not following the rules.

The trial court found that the Hjelms signed a residential lease for a rental unit in San Mateo. They did not have an opportunity to negotiate their lease, which was mailed to them out of state for their signature. The family vacated a little over a year after moving in, following a persistent and unaddressed bedbug problem. At trial, management personnel testified that they had no real policy for dealing with bedbugs and that high turnover prevented new employees from effectively taking on existing problems.

The appeal sought to review the judgment itself, as well as a healthy award of $326,475.00 in attorneys’ fees (accrued in obtaining damages of only about $70,000.00). However, only the award of attorneys’ fees was properly before the Court because the appeal of the verdict was untimely.
Continue reading Hjelm v. Prometheus Real Estate Group, Inc. – First District Court of Appeals Instructs on the Importance of Following the Rules

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Amendment to Unlawful Detainer Statutes Affects “Public Records Mask”

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California AB 2819, which will take effect on January 1, 2017, now maintains the public records mask on limited unlawful detainer actions (under Cal. Code Civ. Proc., §1161.2) unless a plaintiff prevails in 60 days. (Currently, the statute automatically unmasks the record, unless a defendant prevails in 60 days).

It also adds a Section 1167.1 to the unlawful detainer statutes, which will allow a court to dismiss an unlawful detainer action unless a proof of service is filed within 60 days.

The new provisions are a result of efforts by Assembly Member David Chiu, who urged that “Tenants who prevail in eviction lawsuits should not be placed wrongfully on tenant blacklists”.

The changes shift the balance from the public policy promoting open access to public records in favor of protecting tenants from the stigma of having an eviction on their “record” (whether or not they ultimately prevailed). (The past few years has seen an increase in evictions, which is arguably tied more to increase in housing costs more than an increase in violative behavior.)

On the other hand, landlords have an interest in learning about the eviction history of their prospective tenants. The new law also creates an incentive for defendants to stall the unlawful detainer “summary proceeding” for at least 60 days, to trigger the maintaining of the mask.

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