App. Div. Extravaganza

Wong v. Markarian, No. BV033189 (L.A. Super. App. Div. Jul. 29, 2022)

Arche v. Scallon, No. BV033632 (L.A. Super. App. Div. Aug. 1, 2022)

These are two decisions by the L.A. Superior Appellate Division in limited civil unlawful detainer cases. There isn’t anything of procedural significance to the substance of the opinions. That said, their publication is procedurally significant.

Having done bunch of pro bono UD cases over the course of the pandemic, several things have become clear: 

(1) UD law is both procedurally and substantively complicated. Like as hard as habeas or immigration. Procedurally, the statutory scheme is not the clearest, and everything is designed to work so fast that it’s often tough to get up to speed on how things work. And substantively, landlord tenant law is a jumbled mix of state statutory provisions (seemingly randomly strewn across the codes), (often badly drafted) county or locality ordinances, and common law rules.

(2) It’s gotten even more complicated during the pandemic. At any one time, there were federal, state, county, and city tenant protections. Each of these had its own specific and repeatedly amended eligibility requirements, limitations, and applicable dates. And an added layer of rental assistance law emerged about a year in.   

(3) A significant proportion of UD litigants are pro ses. Those who aren’t are often represented by attorneys working under pressing budgetary constraints, be they legal service organizations, or private landlord or tenant counsel. 

(4) There is very little case law on anything. Basic questions that must by their very nature, have come up all the time remain unanswered. To the extent there is anything, it’s often very old. 

I just tried a case where the issue was the rights of a principal landlord against a known, but potentially not expressly authorized, subtenant, in light of the state and LA City COVID protections and rental assistance rules. Our best case was from 1911. 

Or last year, the Supreme Court decided an important procedural question about motions to quash that touches on almost every case. In doing so, it resolved a split of authority that had been pending for seven years.

(5) There is an enormous volume of this litigation statewide. Like thousands of cases per year.

Which is all a long way of saying that to the extent UD cases get appealed, the courts deciding them, be they a local appellate division in a limited civil or the Court of Appeal in an unlimited, should try hard to publish more. I would be willing to lay odds that essentially any UD case that makes it to an appeal presents at least one legal or procedural issue that satisfies Rule 8.1105(c)’s publication criteria. 

So the fact that the L.A. App. Div. published two cases decided within a week—each addressing a difficult-to-parse local ordinance—is something to be commended.

Instruments

Hilaly v. Allen, No. JAD19-05 (S.F. Super. App. Div. May 21, 2019)

Evidence Code § 622 creates a conclusive presumption regarding the truth of recitations of fact in a “written instrument.” “Instrument” is not defined, but “[a]s used in section 622, an ‘instrument’ usually refers to a contract, but may apply to contract-like writings, such as a commercial estoppel certificate that all parties understand is ‘a binding confirmation of a lease agreement.’” The informal tenant questionnaire at issue in this case, however, is not an instrument. It was neither supported by consideration nor the subject of mutual consent.

Affirmed.

You Have the Right to Demur

Butenschoen v. Flacker, No. BV 310862 (L.A. Super. App. Div. Oct. 16, 2017)

The trial court in a unlawful detainer case denied Tenant’s motion to quash service and ordered her to “file and serve an answer only” within five days. Instead of an answer, Tenant demurred. That led to a default, presumably for failure to answer. Tenant appealed, and the LA Superior Appellate Division reverses.

UD practice has some procedures that are particular to it. Their defining characteristic is very short deadlines. If a defendant moves to quash service and the motion is denied, she gets only five calendar days to file a responsive pleading. But one way in which UD is like ordinary civil procedure is that appropriate responsive pleadings include both an answer and a demurrer. So the trial court couldn’t effectively order Tenant to forego a demurrer, just because the motion to quash was denied. So the default’s no good.

Reversed.

Seven Service Options, None Good, Doesn't Cut It Under CCP § 98.

Midland Funding, Inc. v. Romero, No. JAD16-06 (Orange Cnty. Super. App. Div. Sept. 6, 2016)

Code of Civil Procedure § 98 permits, under certain conditions, a party in a limited civil case to offer a declaration in lieu of a witness’s direct testimony. Plaintiff—some kind a debt collector—offered such a declaration by one of its officers, purporting to attest to its acquisition of Defendant’s account and to lay give foundation that certain documents were admissible business records. The declaration agreed to accept service of a trial subpoena at any one of seven locations, several of which were more that 150 miles from the courthouse and others of which were “c/o” addresses, presumably acceptable for substitute but not personal service. The trial court let the docs in over Defendant’s objection and Defendant appealed to OC Superior’s App Div.

$140 Buys Plaintiff $100k Extra.

AP-Colton LLC v. Ohaeri, No. E059505 (D4d2 Sept. 15, 2015)

Plaintiff filed a limited civil case in a real estate dispute, seeking damages under $25k. Defendants filed a cross-claim seeking $1 million—more than enough to put the case into unlimited civil. But they never paid the $140 reclassification fee. Plaintiff then amended, seeking well over the $25k threshold. It didn’t pay the fee either, asserting that was on Defendants. Plaintiff won a $125k verdict, and Defendants appealed, arguing that the case should have remained limited civil with a $25k max, since nobody ever paid the fee to reclassify the case as unlimited.

The court of appeal says that’s right, mostly. Since nobody paid the reclassification fee, the case should have stayed in limited civil. But it was Defendants who, having purported to turn the case into an unlimited civil with their million-dollar cross-claim, never filed the fee. And indeed, when they took their appeal, Defendants took steps to make sure the case went to the court of appeal and not to the appellate division of the superior court, where limited civil appeals are supposed be heard. Under the circumstances, judicial estoppel precluded Defendants from objecting to an award exceeding $25k on appeal. They took several positions inconsistent with the case remaining limited civil. So equity should hold them to that. Subject, that is, to the Plaintiff ponying up the $140 fee to the clerk on remand.

Affirmed.