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.

Quashing Service in Unlawful Detainer

Stancil v. Superior Court, No. S253783 (Cal. May 3, 2021)

Unlawful detainers—eviction proceedings—are among the most common civil litigations in California state courts. More than 150,000 of them get filed in any given year. 

UD procedure is, however, a wreck. It is super-expedited—a response to a complaint needs to be served within five days. Summary judgment motions can be heard on five days notice. Trial can be set in twenty days.

At the same time, it is also very complicated. The substance and procedure are governed by numerous vaguely worded statutes, strewn across multiple codes in seemingly random fashion. There are overlapping layers of law at the city, county, state, and sometimes even the federal level. Many of the defenses are extremely technical. And, despite the enormous volume of filings, there is very little case law on anything. 

And then on top of all that, many of the litigants are pro se, and even the represented ones often aren’t paying their lawyers for hours of work to figure it all out.

This case, however, made it to the Supreme Court. The question presented is whether and how the tenant can use a motion to quash to challenge a UD complaint. It’s an interesting one.

In ordinary civil procedure, a motion to quash is used to challenge a defect in service or the lack of personal jurisdiction. The relevant statute, Code of Civil Procedure § 418.10, also addresses forum nonconveniens. It permits a defendant to make a special appearance to challenge service. No responsive pleading is required unless and until the motion is denied. The time to respond is further tolled if the defendant takes writ petition—specifically authorized by § 418.10(c)—until ten days after it is denied.

This has an unusual significance in UD cases because it potentially creates a avenue the tenant to really slow things down. Instead of five days to respond, the tenant gets the time spent to brief and argue the motion, ten days to take a writ, whatever time it takes to get decided, and then, if denied, ten days after the denial to answer.   

That creates a lot of incentive for the tenant to move to quash. Even when personal jurisdiction, as such, is not really at issue. Which is what happened here. Plaintiff—who appears to be the renter of a boat slip at a Marina of the S.F. Bay—argued in his motion that the wrong public entity was the name plaintiff. The trial court denied his motion, and then the appellate division and the Court of Appeal denied his writs. But the Supreme Court granted review, due to a longstanding perceived split of authority between Delta Imports, Inc v. Municipal Court, 146 Cal. App. 3d 1033, 1036 (1983) and Borsuk v. Superior Court, 242 Cal. App. 4th 607, 610 (2015).

The Court, in a unanimous opinion by Justice Cuellar, takes an interesting tack. Plaintiff loses, but the rule the Court lays winds up being relatively favorable to tenants. As the Court explains, a motion to quash under § 418.10 can only raise issues with personal jurisdiction or service. Tenant’s effort here—which entails a challenge to the truth of some of the facts alleged in the complaint—is not that. So a motion to quash is not an appropriate vehicle in his case.

But while that was enough to end the case, it doesn’t end the analysis. As the Court explains, UD is a creature of statute, with a bunch of special procedures. One of them is the right to serve a summons that requires a response within five days. In order to serve that kind of summons, however, the case needs to be a legit UD case. Were you to serve a five-day summons in an ordinary tort case, that service would be defective, it would be inadequate for the court to take jurisdiction over the defendant, and thus it could be subject to a motion to quash.

So, reasons the Court, a condition of serving a five-day notice in a legit UD case is pleading a legit UD case. A complaint that doesn’t state facts, if assumed true, that make out all the elements of an actionable UD claim is thus amenable to attack by a motion to quash.*

The upshot of all this is that although the tenant can’t use a motion to quash in a UD case to accomplish what he could with a summary judgment motion, he can use the motion to serve the same essential function of a general demurrer. And because the landlord’s strict compliance with the statutory procedures are elements of a UD claim, that means many of the kind of technical defects that trip up landlords and their counsel are amenable to resolution on on a motion to quash, even if they don’t raise what one would ordinary consider to be defects in service or personal jurisdiction.

Writ denied.

*This case shows the value of a well placed amicus brief. The link between stating a claim and jurisdiction thorough a five-day notice that the Court drew is not all that apparent from the tenant’s brief—it comes directly out of an amicus brief filed by the Western Center on Law & Poverty.

$29k Is a Lot of Rent for 15 Minutes

Graylee v. Castro, No. G057901 (D4d3 Aug. 4, 2020)

To settle an unlawful detainer case, Landlord and Tenants stipulated on the record that Landlord was entitled to a $28,970 judgment, but it could only be entered if tenant failed to vacate by 3:00 p.m. on October 31. Tenants surrendered their key at 1:15 p.m., but told Landlord they weren’t going to hit the 3 p.m. deadline. Tenants asked for an extension, which was denied. Tenants ultimately vacated at some point between 3:15 p.m. and 10:30 a.m the following day.

Landlord moved to enter the judgment, which the trial court ultimately did. But the Court of Appeal reverses, holding that the judgment was an unenforceable penalty under Civil Code § 1671(b). Liquidated damages are permissible, but only if they are a reasonable estimate of the harm caused by a breach. In measuring the reasonableness, the court looks to the stipulation, not the underlying lease. Here, Tenants missed the deadline by somewhere between an hour and a day. $28,970 was not a reasonable estimate of the harm caused by that delay.

Reversed.

It Is Very Hard to Waive the Right to Jury Trial

 Chen v. Lin, No. JAD19-10 (L.A. Super. App. Div. Nov. 14, 2019)

 This is a UD case where the Tenant (a pro se) demanded a jury trial. But she failed to comply with some of the procedures in the court’s general order re for preparing for jury trials in UD cases. Stuff like submitting jury instructions and verdict forms and meeting and conferring on various trial issues. So the trial court struck her jury demand. After losing the UD, tenant appealed, again pro se.

The L.A. Superior App. Div. holds that striking her demand was per se reversible error. Under Article I, section 16 of the California State Constitution, a jury trial can be waived only on grounds authorized by statute. Most of those grounds are listed in Code of Civil Procedure § 631(f). Failing to diligently prepare for trial is not one of them. Thus, although Tenant could have suffered other sanctions for failing to prepare, the trial court had no authority to strike her jury demand.

Reversed.

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.

Habitability Question Goes to the Jury in a UD Case

Guttman v. Chiazor, No. JAD17-15, (L.A. Super. App. Div. Sept. 8, 2017)

The appellate division of LA Superior construes Code of Civil Procedure § 1174.2 to provide a right to jury trial on the affirmative defense of breach of the warranty of habitability in an unlawful detainer proceeding. In subsections (a) and (b), the statute makes reference to “the court” as trying issues. But that is rendered ambiguous by (d)’s clear statement that the statute is not intended to deny the tenant a right to a jury trial. Given that the legislative history is super clear that the whole point of enacting (d) was to avoid interpretations that (a) and (b) permitted only a bench trial, the right was provided by the statute. Thus, there’s no need to get into an analysis of whether it was required constitutionally. Moreover, the error was per se-reversible structural error, requiring reversal without regard to whether it was harmless. 

Reversed.

Tenant Can't SLAPP Landlord's UD Case

Olive Properties v. Cool Waters Enters., No. B261105 (D2d3 Oct. 30, 2015)

The court here explains that it is publishing its opinion “to address the potential for abuse of the anti-SLAPP statute in unlawful detainer litigation.” Although that issue has seen a lot of litigation over the years, it’s pretty well settled that an unlawful detainer case arises from the defendant’s failure to pay rent and not from some related litigation oriented activity, so the anti-SLAPP statute is not implicated. 

Be Careful what You Stip to ...

Needelman v. Dewolf Realty Co., Inc., No. A141306 (D1d3 Aug. 18, 2015)

To buy some time in his apartment, Plaintiff settled an unlawful detainer case with his Landlord by entering a stipulated judgment. The judgment let him stay in the apartment, rent free, for several additional months, conditioned on his abiding by the building’s house rules. The judgment further provided that, if the landlord received a verified complaint that Plaintiff broke the rules, the landlord could enforce an unlawful detainer through ex parte application and kick him out, that any property left behind would be deemed abandoned, and that plaintiff waived any action for wrongful eviction arising out of the tenancy. When, two months later, fellow tenants complained that Plaintiff appeared naked, banging on his door, at 4 am, Landlord did just that.

A Bit Too Clever ...

Lyons v. Santa Barbara Cnty. Sheriff’s Office, No. B256041 (D2d6 Dec. 3, 2014)

Unsurprisingly, you can’t file a taxpayer action under Code of Civil Procedure § 526a to collaterally attack an unlawful detainer judgment on the grounds that the decision was unconstitutional.

Anti-anti-SLAPP Sanctions

Ben-Shahar v. Pickart, No. B250728 (D2d1 Nov. 24, 2014)

As is well-settled, actions challenging wrongful evictions generally do not arise from protected activity for the purposes of the anti-SLAPP analysis, even though the eviction and unlawful detainer processes involve certain litigation-related conduct, like servicing a notice to quit. Numerous published cases explain that unless the sole basis of liability asserted in a complaint is the landlord’s prosecution of an unlawful detainer action, the complaint does not fall within the ambit of the anti-SLAPP statute. Defendant here did not heed this advice. For that—on top of a published opinion affirming the denial of their anti-SLAPP motion—he also gets a remand for the trial court to decide whether to order him to pay plaintiff’s fees because the motion was effectively frivolous.

Affirmed in part.

Reigning in Some Anti-SLAPP Madness

Ulkarim v. Westfield LLC, No. B247174 (July 14, 2014)

A commercial landlord brought and won an unlawful detainer proceeding to evict a tenant. Thereafter, tenant sued landlord for breach of contract and various and sundry torts arising from alleged breaches of the lease and wrongful eviction. Landlord filed an anti-SLAPP motion. Its theory was that the case arose from the service of the notice of termination for the UD case, which is protected activity under Code of Civil Procedure § 425.16(e). The trial court agreed but the court here reverses. 

As the court explains, “a tenant’s complaint against a landlord filed after the service of a notice of termination and the filing of a complaint for unlawful detainer does not arise from those particular activities if the gravamen of the tenant’s complaint challenges the decision to terminate the tenancy or other conduct in connection with the termination apart from the service of a notice of termination or filing of an unlawful detainer complaint.” The fact that the eviction process entails some court-related activity does not mean that a landlord’s decision to evict is protected petitioning under the First Amendment. The weight of the authority—exhaustively canvassed in the opinion—supports this proposition. To the extent that two cases can be read to suggest otherwise, they are wrong.

Reversed.