court talk

By Clifford E. Fried

1100 Park Lane Associates v. Konrad Feldman
A few months back, “Court Talk” covered cases where the court dismissed tenant lawsuits based upon a landlord’s exercise of his or her rights to petition the courts or free speech, and where the tenant has no probability of prevailing. The dismissals came in response to landlords’ anti-SLAPP (Strategic Lawsuit Against Public Participation) motions.

A new published decision strengthens the ability of landlords to quickly have lawsuits dismissed where the tenant’s claim is based upon a wrongful eviction arising out of the service of an eviction notice. In 1100 Park Lane Associates v. Konrad Feldman, the Court of Appeal for the First District ruled that the landlord’s anti-SLAPP motion should have been granted to most of the tenants’ claims.

Park Lane Associates served Konrad Feldman a three-day notice to quit, alleging that Feldman was an unapproved subtenant in unlawful possession of the premises and had altered the premises without written approval. When Feldman failed to vacate, an unlawful detainer action was filed. Before the case went to trial, Feldman and the master tenant surrendered possession.

Feldman then filed a cross-complaint for damages against Park Lane and its agents for retaliatory eviction, negligence, negligent misrepresentation, breach of the implied covenant of quiet enjoyment, wrongful eviction (violation of the San Francisco Rent Ordinance), breach of contract and unfair business practices. Feldman claimed that the landlord’s agent had threatened him with eviction, evicted hundreds of tenants and told Feldman he would never be able to rent another apartment in San Francisco. Feldman also said he had discussed the case with his uncle, a federal judge.

Park Lane Associates responded with an anti-SLAPP motion seeking to strike the tenant’s cross-complaint on the grounds that the claims arose out of alleged conduct of the landlord that were in furtherance of its rights of free speech and petition, and that Feldman could not establish that he could prevail on his claims. The court agreed that the claims arose out of Park Lane’s right of petition, but that Feldman had failed to establish a probability of prevailing only on the claim of retaliatory eviction. Appeals were filed by both the landlord and tenant.

An anti-SLAPP motion in a tenant lawsuit involves a two-part inquiry by the court. Under the first prong, the landlord must make a preliminary showing that the claim arises from an act in furtherance of his or her rights of petition or free speech. If such a showing has been made, the burden then shifts to the tenant to demonstrate a probability of prevailing on the claim; if the tenant fails to carry that burden, the claim is stricken.

On appeal, the 1100 Park Lane court noted that the cross-complaint was based entirely upon threats made by the landlord’s agent, the service of the notice to quit and the filing of an unlawful detainer action. The court easily dealt with the filing of the unlawful detainer by saying such activity is clearly protected by the anti-SLAPP statute, as is the service of the eviction notice upon which the unlawful detainer action is based. As for the agent’s alleged threats, the court said they were communications in connection with an ongoing dispute and in anticipation of litigation and, therefore, within the scope of the anti-SLAPP statute.

Distinguishing itself from some recent cases from Southern California that rejected anti-SLAPP motions, the 1100 Park Lane court noted that the focus of the anti-SLAPP statute is not on the form of the plaintiff’s cause of action but, rather, on the defendant’s activity that gives rise to liability. And in this case, Feldman’s cross-complaint was based upon the landlord’s filing of a lawsuit, service of an eviction notice and the landlord’s statements in connection with a threatened lawsuit. Since these were the activities being challenged by Feldman, they were the basis for most of his claims. The landlord met the first prong of the anti-SLAPP statute.

The court then analyzed the second prong and noted that the litigation privilege is relevant in the anti-SLAPP analysis in that it may present a substantive defense a tenant must overcome to demonstrate a probability of prevailing. The litigation privilege says that a communication made as part of a judicial proceeding is privileged and cannot form the basis of a lawsuit. The privilege has been held to apply to statements made during a trial, as well as before and after, so long as they are connected to the litigation.

The court held that the filing of the unlawful detainer was privileged, as was the service of the eviction notice and the landlord’s threats, all of which were prelitigation communications under the facts of this case.

Tenant advocates from Southern California are now fighting to have the 1100 Park Lane case depublished so that it cannot be cited by landlords as binding authority in other cases. Only the Supreme Court of California can order this case depublished.

Buckingham Property Mgmt. v. Fresno Superior Court
This case determines the issue of when a Three-Day Notice to Pay Rent or Quit expires. If the notice is personally served on the tenant, the answer is, of course, three days. But what is the rule when the notice is served by substituted service or post and mail? Some courts add five days for the mailing and some do not.

In an unpublished decision, the Appellate Division of the Fresno Superior Court carefully reasons that five days should not be added for mailing. While the Fresno decision isn’t binding on other superior courts in the state, the reasoning of the decision is quite persuasive.

State law says that a three-day notice is properly served: (1) by personal delivery to the tenant; (2) if the tenant is absent from his usual residence or business, by leaving a copy with a person at either place and then mailing a copy to the unit; or (3) if the tenant’s usual residence or business cannot be ascertained, or another person cannot be found, then by posting a copy at the rental unit and then mailing a copy to the tenant at the unit.

However, the law doesn’t say when service is deemed effective if the notice is subserved (subpart 2) or served by post and mail (subpart 3).

Code of Civil Procedure Sec. 1013(a) states that when serving documents by mail, service is complete at the time of the deposit with the post office or a mailbox, but any period of notice and any right or duty to act or respond within any period prescribed by statute or rule of court is extended five calendar days. This law was amended in 1995 to say that the extension applies in the absence of a specific exception provided by law.

In the years before the 1995 amendment, a few of the Superior Court Appellate Divisions published decisions addressing whether the period for curing the defect (or bringing an unlawful detainer action) following service of a three-day notice is extended if service of the notice is by mail.

The Santa Clara County Superior Court said in Davidson v. Quinn that the three-day period runs from the date the tenant receives notice, not the date it was mailed. The Sacramento Superior Court held in Walters v. Meyers that the time to respond to a three-day notice is not extended by five days because of a mailing and that service is effective on the date the notice is posted and mailed. The Los Angeles County Superior Court, in Highland Plastics Inc. v. Enders, essentially agreed with the court in Walters v. Meyers. Because these published decisions were from appellate divisions of various superior courts, their holdings weren’t binding on judges in other counties.

After the 1995 amendment to Sec. 1013(a), the Fourth District Court of Appeals issued its opinion, in Losorio v. Motta, holding that Sec. 1013 didn’t apply to unlawful detainer actions. However, some local courts refuse to apply the holding in Losorio to three-day eviction notices because the tenant in Losorio was served, by post and mail, with a 30-day notice of termination of tenancy and not a three-day notice.

The Fresno Superior Court Appellate Division has decided to adopt the holdings and rationale in Walters and Losorio. The Fresno court ruled that procedures in unlawful detainer actions are entirely separate from procedures pertaining to civil actions generally. Unlawful detainer procedures supersede general laws and rules, such as Sec. 1013. Therefore, the statute providing for service of a three-day eviction notice doesn’t require a five-day extension for mailing.

The court also said that Sec. 1013(a) contemplates the service of papers in the course of legal or administrative proceedings, or at the very least, after proceedings have been initiated. Since eviction notices are served before the unlawful detainer action is filed, they are outside the purview of Sec. 1013(a).
At the request of Buckingham Property Management, the Fresno Appellate Division ordered its clerks and judges not to apply the five-day extension of Sec. 1013(a) to eviction notices.

City of Santa Monica v. Gonzalez
This decision is important for landlords because it is authored by the state Supreme Court and it highlights the bad things that can happen if landlords ignore notices of violation issued by city building officials. Sections 17980.6 and 17980.7 of the Health and Safety Code contain a scheme providing certain remedies to
address substandard residential housing that is unsafe to occupy.

Pursuant to section 17980.6, an enforcement agency may issue a notice to an owner to repair or abate property conditions that violate state or local building standards and substantially endanger the health and safety of residents or the public. Section 17980.7 provides that, if the owner fails to comply with the notice despite having been afforded a reasonable opportunity to do so, the enforcement agency may seek judicial appointment of a receiver to assume control over the property and remediate the violations or take other appropriate action.

In City of Santa Monica v. Gonzalez, the California Supreme Court concluded that an enforcement agency’s failure to fully comply with the requirements specified
in section 17980.6 does not necessarily invalidate a receiver’s appointment under section 17980.7, and that the particular instances of noncompliance in this case did not invalidate the receivership orders. The court also found that, in view of all the circumstances presented, the trial court acted well within its discretion in authorizing the receiver to forgo rehabilitation of the substandard property at issue and to instead contract for demolition.

For more than 15 years, Gonzalez’s property had been in an extremely unsafe and unsanitary condition that endangered its occupants and neighbors. In August 1989, the City of Santa Monica filed a civil nuisance lawsuit against Gonzalez, alleging violations of the uniform building, fire, mechanical, plumbing and electrical codes. The city obtained a default judgment requiring Gonzalez to demolish certain structures built without permits. The judgment authorized the city to do the demolition work itself if Gonzalez did not do so within 45 days. In January 1991, the city did the demolition work at a cost of $21,939.93.

Criminal charges were also filed against Gonzalez, to which he pled guilty. He was placed on probation and ordered to correct all code violations within 30 days. When he failed to do so, he was taken into custody and spent 280 days in jail.
Several years later, the city inspected and found more code violations at the property and a second criminal complaint was filed; a deal was made, and Gonzalez was ordered to correct the code violations. When he failed to do so, the city petitioned the court for the appointment of a receiver.

The petition alleged that numerous serious code violations on the property presented a substantial threat to the health and safety of the residents and the nearby community. These included: accumulation of combustible debris and rubbish in the exterior of the property; use of temporary extension cords in place of permanent approved wiring; no heating in the units; renting out multiple beds on the second floor in violation of permissible occupancy rules and prior court orders; failure to maintain the property in a safe and sanitary condition; failure to have operable and proper windows in all sleeping rooms; and nonoperational and unregistered vehicles parked in the backyard. The trial court appointed a receiver, who opted to demolish the rest of the property rather than make repairs.
Gonzalez appealed the appointment and decision to demolish, claiming that the city was required to provide notice that receivership was a potential consequence of failure to correct the substandard condition of his property and that the failure to give such notice was a violation of his due process rights.

The court ruled that state law does not require the notice to repair to inform the property owner that receivership is a potential consequence of failure to correct or abate the identified violations. The court also rejected other procedural defects claimed by Gonzalez.

Gonzalez also claimed that the trial court’s order authorizing the receiver to contract for demolition was not supported by the law and must be reversed. The Supreme Court responded by ruling that, considering all the circumstances, the trial court acted well within its broad discretion, and clearly in the interest of fairness, justice and the rights of the respective parties and the public, in authorizing the receiver’s pursuit of the demolition alternative.

There are a few lessons to be learned from this decision. First, cities have broad power to enforce building and other codes that relate to health and safety issues. Second, if landlords don’t comply with notices to correct code violations, they could end up in jail, have receivers appointed to manage the property and, in extreme cases, even have their buildings demolished.

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The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. The information within this article is general in nature. Consult an attorney for any specific problem. Clifford E. Fried is a partner with Wiegel & Fried, LLP, 415-552-8230. Copyright © 2008 SF Apartment Magazine. All rights reserved.