Selected Developments
June 2018 Update
Immigrant and Citizenship Status Protection for Tenants. In the past year, comprehensive legislation, Stats 2017, ch 489, added a large matrix of new protections for tenants to both the conventional landlord-tenant laws and the statutes governing evictions. Civil Code §§1940.05, 1940.2, 1940.3, 1940.35, and 1942.5 prohibit threats to disclose (or actual disclosure of) information related 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, in order to influence a tenant to vacate a dwelling, to harass or intimidate a tenant or prospective tenant, to retaliate against a tenant for the exercise of his or her rights, or to recover possession of the dwelling, with specified exceptions. Civil Code §§1940.35 and 1942.5 provide financial penalties for violations. In civil actions, CC §3339.10 limits discovery regarding a party’s immigration status. The bill also added CCP §1161.4 to preclude eviction of a tenant or occupant because of the immigration or citizenship status of the tenant or occupant, unless the landlord is complying with any legal obligation under any federal government program that provides for rent limitations or rental assistance to a qualified tenant; this section also established an affirmative defense and rebuttable presumptions with respect to the immigration issue. For discussion and jury instruction, see §§14.22B, 16.16B, 23.3A, 25.57, 25.91.
Fair Housing Laws and Evictions. If the grounds for lease termination involve criminal activity or material noncompliance with the lease or state landlord-tenant laws, tenants in HUD-assisted and project-based Section 8 units must be served with a notice according to state law and the rental agreement. This usually means a 3-day notice for tenants in most HUD-assisted programs but a 30-day notice for tenants in Section 202 or Section 811 programs. See Long Beach Brethren Manor, Inc. v Leverett (2015) 239 CA4th Supp 24. See §18.22.
A consensus among federal courts has been reached that both public and private landlords may not discriminate against persons on the basis of their immigration or citizenship status under the Civil Rights Act of 1866 (42 USC §1981) or under related protected categories (i.e., race or national origin) under the Fair Housing Act (FHA). See §§14.21, 18.20A.
Landlords with tenants receiving disability income may need to grant tenants’ requests to alter the due date of rental payment to reasonably accommodate tenants’ commonly late receipt of government benefits. See Fair Hous. Rights Ctr. in Southeastern Pennsylvania v Morgan Props. Mgmt. Co., LLC (ED Penn, Apr. 11, 2017, No.16-4677) 2017 US Dist Lexis 55249). See §14.21.
A federal district court cannot enjoin the enforcement of an unlawful detainer judgment issued by a state court on the basis of the tenant’s assertion that the eviction violated the FHA. Warda v Santee Apartments LP (SD Cal, Apr. 11, 2017, No. 17cv648-WQH-JMA) 2017 US Dist Lexis 55529. See §28.7A.
Effective June 14, 2017, housing providers must provide a HUD form Notice of Occupancy Rights under the Violence Against Women Act and a self-certification form to applicants for (or tenants of) housing assisted under a covered housing program. See §18.17B.
Procedures for defending evictions arising from discrimination on the basis of a tenant’s immigration or citizenship status are in newly enacted CCP §1161.4. See §§14.22B, 16.16B, 23.3A, 25.57, and revised jury instruction in §25.91.
Rights and Obligations Before, During, and After Tenancy. The tenant may be able to recover punitive damages in an action for breach of the implied warranty of habitability under CC §3294 if the landlord’s conduct was willful, oppressive, or malicious. Fernandes v Singh (2017) 16 CA5th 932. See §§3.1, 3.5, 15.48, 16.14–16.15, 25.53.
Recreational use of marijuana in California was legalized beginning November 9, 2016, by Proposition 64, commonly known as the Adult Use of Marijuana Act. The new law builds on and utilizes many aspects of the comprehensive regulatory structure for commercial medical cannabis. It provides that it is not unlawful under state criminal law when a landlord in good faith allows his or her property to be used by a cannabis licensee, its employees, and its agents, as permitted under both state and local licenses or permits, and in compliance with applicable local ordinances. See Bus & P C §26032(b). Thus, it is unlikely that a landlord could evict a tenant after the landlord or its agent acknowledges and consents to commercial cannabis activity on the property under Bus & P C §26051.5(a)(2), even if the landlord is prosecuted under federal law. See §14.22D.
The exception from the attorney-client privilege for situations in which an attorney’s services were sought to enable or aid the client to plan or commit a crime will not apply to legal services that comply with state or local laws on medicinal or adult-use cannabis, and confidential communications provided for the purpose of rendering those services are confidential as between client and attorney, as long as the attorney also advises the client on conflicts with respect to federal law. See Evid C §956(b), cited in §14.22D.
In Ayala v Dawson (2017) 13 CA5th 1319, the tenants were collaterally estopped from bringing a suit for fraud claims when the underlying allegations of fraud were presented in prior unlawful detainer actions, were extensively and fully litigated, and the trial courts had made detailed findings of fact in rejecting the claims. See §§2.1, 20.9, 26.38A.
Anti-SLAPP Motions. Under CCP §425.16(c), the court must award attorney fees and costs to a prevailing defendant on an anti-SLAPP motion. 569 E. County Blvd. LLC v Backcountry Against the Dump, Inc. (2017) 6 CA5th 426. See §13.51.
Local Eviction Controls and Constitutional Issues. Under SF Adm C §37.9E, a landlord must provide the tenant with a disclosure form approved by the rent board before commencing buyout negotiations and file a copy of any buyout agreement with the rent board. The Ninth Circuit upheld the ordinance against multiple constitutional challenges in San Francisco Apartment Ass’n v City & County of San Francisco (9th Cir 2018) 881 F3d 1169. See §17.4A.
Tenant buyout agreements, when properly negotiated, reported, and documented, trump eviction control ordinances that otherwise preclude tenant waivers of rights (such as good or just cause for a move-out). Geraghty v Shalizi (2017) 8 CA5th 593. See §17.4A.
Numerous sections of the San Francisco Residential Rent Stabilization and Arbitration Ordinance were amended in June and July 2017 to strengthen protections for tenants in owner move-in evictions. See §17.16.
Some ordinances restrict the season in which an eviction can occur for an owner or relative move-in or for other no-fault reasons. See, e.g., San Francisco Residential Rent Stabilization and Arbitration Ordinance §37.9(j), which prohibits evictions of families with school-age children during the school year, and which was upheld against multiple state-law preemption challenges in San Francisco Apartment Ass’n v City & County of San Francisco (2018) 20 CA5th 510. See §§17.4, 17.14, 17.14A, 17.15.
A minor child may be a lawful occupant of a rental unit, but is not a tenant to whom relocation assistance must be separately paid. Danger Panda, LLC v Launiu (2017) 10 CA5th 502, interpreting San Francisco Residential Rent Stabilization and Arbitration Ordinance, SF Admin C, chap 37. In response, the ordinance was amended in June 2017 to require a landlord to calculate Ellis Act relocation benefits based on all lawful occupants in the unit regardless of age. See §17.32.
To discourage owners from falsely removing rent-controlled units from the market and then attempting to return them to the rental market at current market rates, the Ellis Act employs a three-tiered timeline, during which an owner who returns previously withdrawn units to the market suffers a penalty for doing so. See, e.g., City of W. Hollywood v Kihagi (2017) 16 CA5th 739, cited in §§17.14A, 17.25, 26.21.
Terminating Tenancies and Eviction Actions. In Scott v Kaiuum (2017) 8 CA5th Supp 1, with respect to a tenant renting a residential unit with Section 8 program assistance, a demand to pay rent or quit was found to be excessive and invalid because it (1) demanded rent that was not owing because of uncorrected habitability violations and (2) specified the full market rent rather than the lesser amount of rent the tenant actually paid, which then was subsidized by the local housing authority through the Section 8 program. See §§6.18, 15.33, 15.48, 18.13.
The lease or rental agreement should clearly specify the amount and manner of rent payment. If the landlord directs the manner in which the rent is to be delivered and the tenant remits rent in that manner, the landlord cannot prevail in an eviction action, even if the landlord does not receive it. Sleep EZ v Mateo (2017) 13 CA5th Supp 1. See §§6.20B, 14.17.
Effective January 1, 2018, the legislature added CCP §415.20(c), which provides that if the only address reasonably known for the person to be served is a private mailbox in a commercial mail receiving agency, service may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the mail receiving agency in the manner specified. This amendment will have limited effect in most unlawful detainer actions because the leased premises is a known address. See §§11.7, 11.13–11.14.
If a motion to quash is filed without any other pleading (e.g., demurrer, answer, or motion to strike) and the motion to quash is denied, the law allows 5 days after service on the tenant of a written notice of entry of an order denying the motion in which the tenant must file pleadings responsive to the complaint. The court may not prohibit the tenant from demurring to the complaint after a motion to quash is denied. Butenschoen v Flaker (2017) 16 CA5th Supp 10. See §11.41, 13.25.
Procedures for defending evictions arising from discrimination on the basis of a tenant’s immigration or citizenship status are in newly enacted CCP §1161.4, which allows a tenant or occupant to raise, as an affirmative defense in the unlawful detainer action, that the landlord violated §1161.4. It is a rebuttable presumption that a tenant or occupant has established the defense if the landlord commits specified acts. See discussions in §§14.22B, 16.16B, 23.3A, 25.91.
A tenant has the right to a jury trial on the affirmative defense of the implied warranty of habitability. Guttman v Chiazor (2017) 15 CA5th Supp 57. See §§15.14, 25.23, 25.18, 25.23.
When an eviction action is based on two different reasons that each require a different notice, the complaint must allege and the landlord must prove facts sufficient to show that a judgment for possession is warranted on at least one of those reasons. The CBM Group, Inc. v Llamas (2017) 12 CA5th Supp 34. See §§6.45, 25.44.
Under state law, a landlord may terminate a tenancy if the tenant maintains, commits, or permits a nuisance on the premises. In public housing, repeated violations of nonsmoking lease provisions without impacting others may suffice under 24 CFR §966.4(f)(12)(i)(B). See §18.14.
In an eviction action following foreclosure, a court of appeal held that the purchaser at a foreclosure sale need not await recordation of the trustee’s deed before serving the notice to quit on a tenant whose lease was extinguished by the foreclosure. The court held, however, that the deed should be recorded before the unlawful detainer action is filed. The supreme court will review the case in Dr. Leevil, LLC v Westlake Health Care Ctr. (review granted June 14, 2017; superseded opinion at 9 CA5th 450). See §20.4.
Because CCP §1161b will expire in its entirety by its own terms at the end of 2019 unless extended, on January 1, 2020, the current 90-day notice period for terminating month-to-month residential tenancies after a foreclosure will revert to a 30-day period as required by CCP §1161a. See §20.6.
In proceedings or discovery undertaken in forcible entry and forcible detainer actions, or in any civil action involving a tenant’s housing rights, the “immigration or citizenship status” of any person “is irrelevant to any issue of liability or remedy.” CC §3339.10(a). Thus, no inquiry is permitted into a person’s immigration or citizenship status, unless the tenant’s asserted claims or defenses place the person’s immigration or citizenship status directly in dispute or the party seeking to make such inquiry demonstrates by clear and convincing evidence that it is necessary to comply with federal immigration law. CC §3339.10(b)(1). See §23.3A.
In 2017, CCP §128.5 was amended to extend indefinitely a trial court’s authority to order expenses and attorney fees incurred by another party employing bad-faith actions or tactics. Sanctions for frivolous litigation actions are also currently governed by CCP §128.7. See §§1.3, 4.36, 13.38, 26.30.
The California Supreme Court held that when the trial court denies a request for a jury trial in a civil action, the decision is immediately reviewable before trial by way of a petition for an extraordinary writ, and that the party requesting the jury need not wait until after a bench trial to appeal the issue. Shaw v Superior Court (2017) 2 C5th 983. See §§25.18, 25.21.
In 2017, CCP §1033.5(a)(13) was amended to allow for the recovery of costs associated with preparation of models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, if said items were “reasonably helpful to aid the trier of fact.” See §§23.19, 26.17.
An unlawful detainer judgment does not preclude the landlord from filing a separate civil action for collection of back-due rent that accrued in months other than the one month for which damages were awarded in the unlawful detainer action. Hong Sang Market, Inc. v Peng (2018) 2018 Cal App Lexis 117. See §§2.1, 19.4B, 26.38A.
The trial court’s denial of a tenant’s motion for nonsuit on the merits under CCP §631.8 in an unlawful detainer action “conclusively establishes” that the action was legally tenable, even if the tenant ultimately prevailed at trial, thus precluding a subsequent action for malicious prosecution by the tenant. Hart v Darwish (review granted Sept. 13, 2017; superseded opinion at 12 CA5th 218). See §25.44.
A court must vacate a default or default judgment on grounds of attorney mistake, inadvertence, surprise, or neglect whenever an application for relief is made no more than 6 months after entry of judgment and is accompanied by the attorney’s sworn affidavit, unless the court finds that the default was not in fact caused by the attorney. See Gee v Greyhound Lines, Inc. (2016) 6 CA5th 477 (mandatory relief properly granted to set aside dismissal after counsel failed to pay fees for change of venue). See §12.14.
When a contractual attorney fee provision, by its language, is limited to actions “brought to enforce” the contract, the successful assertion of the contract as an affirmative defense does not constitute an “action” entitling the defendant to attorney fees. Mountain Air Enters., LLC v Sundowner Towers, LLC (2017) 3 C5th 744. See §26.18.
A voluntary dismissal does not always exculpate a plaintiff from liability for attorney fees. Khan v Shim (2016) 7 CA5th 49 (CC §1717 did not preclude fee award on tort claims that were voluntarily dismissed). See §26.18.
Like a directed verdict, a judgment notwithstanding the verdict is proper only when the court determines that there is insufficient evidence to support a verdict for the nonmoving party, after viewing the evidence in the light most favorable to that party and disregarding conflicting evidence. See supreme court decision in Webb v Special Elec. Co. (2016) 63 C4th 167 (reversing trial court’s grant of judgment notwithstanding verdict when substantial evidence supported jury verdict), cited in §27.8.
In Kabran v Sharp Mem. Hosp. (2017) 2 C5th 330, the supreme court clarified that while the deadline to file a motion for new trial is jurisdictional, the time period for filing affidavits supporting or opposing a new trial motion are not jurisdictional. Thus, the trial court may rely on late-filed affidavits to grant a new trial, and if the non-moving party fails to object in the trial court, it may not do so on appeal. See §27.17.
Tenant Bankruptcies and Stay Relief to Complete Eviction. Residential tenants filing bankruptcy must disclose in their petitions if a judgment for possession of their residence has been entered. Filing a certification with the petition that circumstances exist under which he or she would be permitted to cure, under applicable nonbankruptcy law, the entire monetary default that gave rise to the judgment for possession allows the tenant to retain the protection of the automatic stay for 30 days after the petition is filed, with specified exceptions. For a newly adopted certification form, see Initial Statement About an Eviction Judgment Against You (Official Bankruptcy Form 101A), discussed in §21.1A.
For stay violations that occur in the context of real property foreclosures and resulting evictions, the consequences can be severe. See, e.g., Sundquist v Bank of America (In re Sundquist) (Bankr ED Cal 2017) 566 BR 563 (bank liable for actual and punitive damages for willfully violating stay by, among other things, foreclosing on home and prosecuting unlawful detainer action after borrowers filed bankruptcy petition, forcing them to move, secretly rescinding foreclosure, failing to secure home from looting, and refusing to pay for personal property loss). See §21.2A.
