court talk
A “Civil” War
by Clifford E. Fried
Maria De Jesus Lagunas Espinoza v. Gudelia Calva
This is an example of a tenant losing at trial because the judge was ignorant of the law, as well as in a hurry to decide the case. The landlord attorney may have done his client a disservice by objecting to relevant and material evidence concerning a breach of the warranty of habitability. The procedural rules that apply to big-dollar cases also apply to eviction cases. Erroneous rulings by the court will be reversed on appeal.
Espinoza rented residential property to Calva under a written lease. Calva failed to pay the monthly rent of $750 for three months and had been served with a three-day notice to pay $2,250 or vacate the premises. The tenant did neither, and the landlord filed an unlawful detainer action. In defense, the tenant claimed that the unit was uninhabitable. The tenant introduced evidence at trial that the premises had never been issued a permit of occupancy.
After the landlord presented her evidence at trial, the court announced that the case would be finished in 20 minutes because the court had a jury trial the next day. To expedite the proceedings, the tenant was permitted to make an “offer of proof” instead of presenting actual testimony and documents to establish a defense.
At the conclusion of the trial, the tenant requested that the judge make specific findings in a statement of decision. The judge responded that he didn’t do findings because he didn’t have a secretary and that the tenant wasn’t entitled to findings. The judge noted that although the tenant owed $3,350 in rent, the amount would be reduced because the tenant was locked out for two days and the property was in poor condition. Judgment was entered for the landlord in the amount of $2,350.
State law requires a judge to issue a statement of decision where a trial takes less than one day or a total of eight hours, if a party makes a request for a statement prior to the submission of the case for decision. The California Court of Appeal ruled that it was frivolous for the trial judge to refuse the request for a statement of decision.
Next, the Court of Appeal ruled that an “offer of proof” is not a substitute for evidence. Here, the tenant attorney asked to make an offer of proof because it was already 20 minutes before the end of the court day and the trial judge announced that the trial was to finish that day. By limiting the tenant to just a few minutes to present her case, the trial judge, in effect, precluded the tenant from presenting her defense.
The court held that the trial judge also ignored state law concerning habitability claims and unlawful detainer actions. Because the trial judge found that there were defects in the premises and reduced the rent, the judge should have denied possession to the landlord and declared the tenant the prevailing party on the condition that the tenant pay the reduced rent within five days.
Lastly, the Court of Appeal noted that the tenant’s occupancy was unlawful and that the lease constitutes an illegal contract because the premises lacked a certificate of occupancy. Therefore, the tenant would still not be entitled
to possession.
While the appeal was pending, the tenant vacated the premises (probably because she didn’t even have money to pay the reduced rent). The Court of Appeal reversed the trial judge’s ruling and remanded the case for the court to enter judgment for the tenant.
This case has a lesson for landlords and their attorneys. There are no shortcuts at trial. A tenant is entitled to a full and fair trial on the merits. When a judge is about to make a mistake that could cause a reversal on appeal, the landlord should speak up. The failure to do so could be costly—especially where the rental agreement or law provides for attorneys fees to the prevailing party.
Melinda Birke v. Oakwood Worldwide
Get ready for the onslaught of smoking litigation. Plaintiffs’ lawyers have been gearing up ever since the United States Surgeon General and the California Air Resources Board declared secondhand smoke an airborne toxic substance that causes and or contributes to death or serious illness, and that nonsmokers have increased risks of heart disease and lung cancer when exposed to secondhand smoke.
Several California cities such as Calabasas, Santa Monica and Dublin now prohibit smoking in outdoor public areas because it is considered a public nuisance. Other cities, such as Oakland, regulate smoking in apartment units, but allow landlords to permit smoking in common areas. These laws will provide fertile ground for tenant lawsuits.
In Melinda Birke v. Oakwood Worldwide, Birke, a five-year-old girl who lived with her parents at an Oakwood apartment complex, filed a lawsuit, through her guardian ad litem, for public nuisance and a claim under the Americans with Disabilities Act. Birke alleged that secondhand smoke substantially interfered with her enjoyment by aggravating her allergies and asthma.
Oakwood challenged the suit on technical grounds, arguing that Birke’s complaint failed to state facts demonstrating she suffered a special injury, different in kind from that of the general public, which is necessary to support a public nuisance claim. Oakwood also argued that the ADA claim should fail because the ADA applies to hotels and inns but not apartments. The trial court agreed and dismissed the lawsuit.
The Court of Appeal reversed the decision, holding that while ADA doesn’t apply, Birke stated a valid claim for public nuisance. The court clarified that although the ADA covers public accommodations such as hotels and motels, the legislative history of the act clarifies that it doesn’t include residential facilities.
To state a claim for public nuisance, Birke must, and did, allege (1) the landlord failed to act, creating a condition that was harmful to health or obstructed the free use of common areas; (2) the condition affected a substantial number of people; (3) an ordinary person would be annoyed by the condition; (4) the seriousness of the harm outweighs the social utility of the landlord’s conduct; (5) the tenant didn’t consent to the conduct; (6) the tenant suffered harm that was different from the type of harm suffered by the general public; and (7) the landlord’s conduct was a substantial factor in causing harm to the tenant.
Landlords should note that Birke was a child claiming an injury caused by the landlord. She wasn’t the actual tenant. The court said that Birke has the right to enjoyment of the premises as a member of the tenant’s family. This reinforces the notion that minors can file claims against landlords in the absence of a contractual relationship.
Karen A. Clark v. Mahvash Mazgani
Landlord Mahvash Mazgani evicted tenant Karen A. Clark from her Los Angeles rent controlled apartment so that the landlord’s daughter could move into the tenant’s unit. Los Angeles’s rent laws permit a landlord to evict in order to free a unit for occupancy by an immediate family member. After serving the proper eviction notices, an unlawful detainer action was filed in which the landlord prevailed. The tenant was evicted.
Several months later, the tenant filed a lawsuit for violation of the rent ordinance, fraud and unfair business practices. The tenant claimed that the landlord’s daughter never moved into the unit and that the landlord stopped payment on the required relocation fee. The landlord responded to the lawsuit with a SLAPP (strategic lawsuit against public participation) motion. The landlord argued that the tenant’s lawsuit arose from the landlord’s privileged communications, made in the course of the unlawful detainer action and from the acts of serving and filing the eviction notice. The trial court agreed and dismissed the lawsuit.
On appeal, the court reversed holding that the tenant’s lawsuit did not arise from the landlord’s protected activity taken in furtherance of her right to free speech or petition. The critical consideration is whether the tenant’s lawsuit is “based on” the landlord’s free speech or petitioning activity. The focus is not on the form of the tenant’s cause of action, but on the defendant’s “activity” that gives rise to liability.
The court found that Clark’s complaint was not premised on the landlord’s protected activities of serving an eviction notice and filing an unlawful detainer action. The tenant’s complaint was based upon her removal of the apartment from the rental market and fraudulent eviction for the purpose of installing a family member who never moved in.
The Second Appellate District cited other prior legal decisions also decided by the same court. All of these cases run counter to other decisions dealing with similar cases from the First Appellate District. These landlord-tenant SLAPP cases are turning into a Northern California versus Southern California battle, with the Northern California courts favoring landlords. This appellate court battle will ultimately be decided by the California Supreme Court. Notwithstanding how the law on SLAPP motions is finally decided, when landlords evict tenants for owner and relative move-in purposes, they should really follow the rules, pay the relocation fees to the tenant and actually move in.
RHANAC (Kim) v. City of Oakland
In 2003, a group of landlords challenged Oakland’s Just Cause for Eviction Ordinance. Measure EE was passed by the voters in November 2002. The trial court judge invalidated portions of Measure EE and approved of other parts of the new law. Both the plaintiffs and the City of Oakland appealed.
The Court of Appeal has upheld most of the trial court’s rulings in RHANAC(Kim) v. City of Oakland. In addition, the court concluded that a portion of Measure EE that was not challenged in the trial court is preempted by state law. When the plaintiffs filed their challenge to the eviction ordinance, they made a facial attack on the new law. On appeal, the court expressly stated that it was considering only the text of Measure EE and not whether it might be invalid as applied in certain circumstances. This leaves the door open to future challenges based upon a landlord’s particular circumstances and how Measure EE might deprive that landlord of his or her property rights.
In its ruling, the Court of Appeal reviewed a portion of Measure EE’s owner move-in provisions, which state that it is a presumed violation of the law if the owner fails to continuously occupy the premises for 36 months. In a suit filed by a tenant for damages for violation of Measure EE, the tenant must argue and prove the eviction was a pretext; showing the landlord violated the law is an essential part of the tenant’s claim.
Because a tenant bringing a lawsuit has the burden of proof under the Evidence Code to show the landlord violated the owner move-in cause for eviction allowed by Measure EE, the presumed violation of Measure EE impermissibly shifts that burden. The court held that the presumption is preempted by the State Evidence Code and is invalid.
The impact of this Court of Appeal decision is uncertain. While the appeal was pending, some of the plaintiffs, in particular the Rental Housing Association of Northern Alameda County, settled with the City of Oakland. The settlement resulted in several new Rent Board Regulations that address some of the shortfalls of Measure EE. How this published decision affects the new regulations, if at all, remains to be seen. The other plaintiffs have filed a petition for review by the California Supreme Court, with CAA’s support.
The opinions expressed in this article are those of the author, and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Clifford E. Fried is with Wiegel & Fried, LLP and can be contacted at 415-552-8230. Copyright © 2009 by Wiegel & Fried, LLP. All rights reserved.