June 2019 Update
Law Enforcement and Emergency Assistance on the Premises. Effective January 1, 2019, the California legislature enacted CC §1946.8, a comprehensive tenant protection law that attempts to guide owners of residential housing through their dealings with tenants when the tenants (or residents, occupants, or other persons) actually summon to the premises law enforcement or emergency assistance. Section 1946.8 has multiple requirements and limitations that affect all aspects of the landlord-tenant relationship, from lease formation to preventing retaliatory eviction. See Stats 2018, ch 190, §1, discussed in §§14.22E, 14.59, 16.16C, 19.25, 25.91.
California Rules of Professional Conduct. The Rules of Professional Conduct applicable to attorneys practicing in California were renumbered and substantially amended in 2018; the book was updated to reflect these rule changes insofar as they particularly affect landlord-tenant practice. See §§1.3, 4.3, 4.9, 4.24A, 9.18–9.19, 21.9.
Fair Housing Laws and Evictions. Tenant hoarding in rental units can cause significant health and safety issues. Once hoarding is discovered, the landlord’s first reaction may be to terminate the tenancy or serve a Notice to Cure or Quit. But because hoarding is a mental disability, a different approach is often taken in the context of fair housing law and requirements for reasonable accommodations. See §§6.48, 13.17.
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.
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.
Local Eviction Controls and Constitutional Issues. West Hollywood amended its eviction control ordinance to include as a ground for eviction the unapproved use of rental premises for home sharing, unless the violation is the tenant’s first violation and the tenant cured the first violation within 30 days of receiving written notice. West Hollywood Rent Stabilization Ordinance §17.52.010(5). See §6.49A.
West Hollywood also prohibits home sharing in any rental unit, in any inclusionary housing or other income-restricted housing unit, in any location not approved for residential use (e.g., vehicle, trailer, tent, storage shed, or garage), or in any unit that has been subject to the Ellis Act within the prior 7 years. West Hollywood Rent Stabilization Ordinance §5.66.020. See §6.49A.
In December 2018, Los Angeles imposed new rules on renting out rooms and homes for short stays, as an amendment to its zoning ordinance, which became effective in July 2019. It allows owners to host such rentals only in their “primary residence,” not in a second home or investment property, which eliminates the use of units governed by the rent control ordinance as short-term rentals. Los Angeles Mun C §12.22.A.32. See §6.49A.
A local government entity has power to subpoena business records in its investigation and enforcement of ordinances regulating transient or short-term occupancies. City & County of San Francisco v HomeAway.com, Inc. (2018) 21 CA5th 1116. See §6.49A.
A tenant may not be evicted for using a rental unit for an illegal purpose simply because the unit lacks a certificate of occupancy or has been cited for occupancy or other housing code violations. Los Angeles Rent Stabilization Ordinance §151.09.A.4. If a building is approved for use as a single family dwelling but has been subdivided so that it contains two dwellings, the landlord must pay relocation assistance to the tenants of the affected rental units if the Department of Building and Safety cites the landlord for illegal use. Los Angeles Rent Stabilization Ordinance §151.09.G. See §§6.49, 17.9.
Some local ordinances regulate buyout agreements between landlords and tenants. Under the Los Angeles Rent Stabilization Ordinance §151.31, the required LARSO disclosure notice must be used and must be filed with the Housing Department within 60 days of signing the buyout agreement. See §17.4A.
A tenant facing an Ellis Act eviction may defend on the basis that the landlord lacked a bona fide intent to exit the rental housing market, and evidence that the landlord’s sale of an interest in the property to a lower-unit occupant was a sham is relevant to this inquiry and admissible. Coyne v De Leo (2018) 26 CA5th 801. See §§16.6A, 16,13, 16.25, 17.43–17.44.
A city may not impose a 10-year waiting period for alteration of nonconforming units withdrawn from rental use under the Ellis Act. Small Prop. Owners of San Francisco Inst. v City & County of San Francisco (2018) 22 CA5th 77. See §§17.14, 17.25.
Some local ordinances restrict the season in which an eviction can occur for an owner or relative move-in. For example, San Francisco Residential Rent Stabilization and Arbitration Ordinance §37.9(j) prohibits evictions of families with school-age children during the school year, and it was upheld against a state law preemption challenge in San Francisco Apartment Ass’n v City & County of San Francisco (2018) 20 CA5th 510. Santa Monica also prohibits no-fault evictions of an educator or a minor student during the school year. Santa Monica Mun C §4.27.050. See §§17.14–17.15.
Terminating Tenancies and Eviction Actions. Effective January 1, 2019, a landlord must accept rent payments tendered by a third party on behalf of a tenant, subject to the limitations and conditions specified in CC §1947.3(a)(3). This right is unwaivable and applies to both residential and commercial tenancies. CC §1947.3(e). See §§6.17, 6.31, 19.5A, 31.1, 31.5.
The contact information and disclosures required to be in the rental agreement for service of process must be kept current, and a new owner or manager must comply within 15 days of succeeding the previous owner or manager; eviction for nonpayment of rent cannot be initiated during the period of noncompliance. CC §1962(c). But the eviction bar applies only to successor owners who fail to make the required disclosures. DLI Props., LLC v Hill (2018) 29 CA5th Supp 1 (eviction bar was not applicable to landlord who entered into new lease with tenant after acquiring property in foreclosure sale). See §§6.29, 20.2.
Under CC §§3485–3486, city attorneys and landlords in specified jurisdictions are authorized to evict tenants to abate the nuisance caused by tenants’ “illegal conduct” involving weapons, ammunition, or controlled substances. Although for many jurisdictions these laws were set to expire in 2019, they were extended to January 1, 2024. See §§6.48–6.49.
Newly amended Pen C §396(f) regulates evictions and subsequent rent increases following (1) the proclamation of a state of emergency by the President of the United States or the Governor or (2) the declaration of a local emergency by an official, board, or other governing body vested with such authority in any city, county, or city and county. For details, see §9.9A.
A cause of action for unlawful detainer based on a 3-day notice to pay rent or cure violation of lease does not accrue until after 3 days have elapsed. For decades, landlords often served the notice on Friday, leaving the tenant only the weekend and Monday to pay the rent. If the tenant failed to pay the rent by Monday, the landlord could file the complaint on Tuesday. Effective September 1, 2019, however, calculation of the 3-day notice period under CCP §1161(2)–(3) will explicitly exclude weekends and other judicial holidays. Consequently, if a landlord serves a 3-day notice to pay rent or cure violation of lease on a Friday after September 1, 2019, the tenant will have until the following Wednesday to pay or cure. See §§6.7, 6.25–6.27, 6.36, 7.14.
After a tenant receives a summons and complaint for unlawful detainer, an answer or other responsive pleading must be filed within 5 calendar days. CCP §1167. Until September 1, 2019, computing the 5-day period to respond includes weekends but excludes other legal holidays (unless the last day for filing is a Saturday or Sunday, in which case the time to respond is extended through the next court day). CCP §1167. Effective September 1, 2019, however, computing the 5-day period to respond will explicitly exclude weekends and other judicial holidays. See §§6.25–6.27, 11.4, 14.3.
If attorney fees are ultimately sought in an action to enforce the settlement agreement in a unlawful detainer action, it is crucial to have well prepared invoices and a competent witness from the firm to document attorney fees actually incurred and to authenticate the invoices. See Copenbarger v Morris Cerullo World Evangelism, Inc. (2018) 29 CA5th 1. See §§9.20, 26.24, 27.32.
By amendment to the Civil Code in 2018, the law now provides a procedure for establishing a commercial tenant’s abandonment, initiated by notice not only under CC §1951.3 (for residential property) but also under newly added CC §1951.35 (for commercial property) when the landlord believes that the premises have been abandoned. See §§11.18, 19.1B. See also §§1.12, 3.4, 28.16.
The courts of appeal are split on whether the special provision in CCP §473(b) for mandatory relief from default on the basis of the attorney’s mistake applies to situations other than relief from a default or a default judgment (or a dismissal) after the defendant fails to answer the complaint. See, e.g., Jackson v Kaiser Found. Hosps., Inc. (2019) 32 CA5th 166, 177 (mandatory relief provision not available to undo plaintiff’s voluntary dismissal of her action, even though she represented that attorney advised her to dismiss pending suit without prejudice, premised on understanding that she could refile suit by specified date through counsel), and other recent cases cited in §12.14.
Throughout the state, an increasing number of courts are requiring the e-filing of civil actions (including unlawful detainers). As the name implies, e-filing allows or requires parties to transmit documents directly to a court electronically to create a faster, paperless system. See Note in §14.3.
Counsel using electronic filing of documents with the court need to be aware that if electronic filing fees remain unpaid for a period of 5 days after notice to the attorney of record by the electronic filing service provider, the court may sanction the attorney for nonpayment of fees if they remain unsatisfied for 20 days after notice of sanctions by the clerk. See CCP §411.20.5, cited in §14.3.
Procedures for defending evictions arising from discrimination on the basis of a tenant’s immigration or citizenship status are in newly amended CCP §1161.4, effective January 1, 2019, 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.
In an eviction action following foreclosure, the supreme court held that the purchaser at a foreclosure sale must await recordation of the trustee’s deed before serving the notice to quit on a tenant whose lease was subordinate to the mortgage and thus extinguished by the foreclosure. Dr. Leevil, LLC v Westlake Health Care Ctr. (2018) 6 C5th 474. See §20.4.
Effective June 23, 2018, the Economic Growth, Regulatory Relief, & Consumer Protection Act (Pub L 115–174, §304, 132 Stat 1296) revived and restored the Protecting Tenants at Foreclosure Act of 2009 (PTFA), which had previously expired. The text of the PTFA appears in Historical and Statutory Notes under 12 USC §5220 rather than being directly codified in the United States Code. See §§20.5, 20.8.
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 and the revived PTFA will provide greater protection than California law. See §§20.6, 20.8.
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) 20 CA5th 474. See §§19.4B, 22.1, 26.38A, 28.1. See also §§2.1, 2.4.
Although CCP §1161.3(a) prohibits evictions on the basis of domestic violence and other abuses, there is an exception in CCP §1161.3(b) that allows the landlord to terminate a tenancy after the tenant has availed himself or herself of specified statutory protections and other conditions are met. Further amendments to this law in 2018 added special nondisclosure requirements and other methods of documenting an occurrence of domestic violence. See §§14.22C, 14.22E, 16.16A, 18.17B. See also §§14.59, 15.19, 16.16C.
The California Supreme Court reviewed a case in which the trial court issued findings of fact but no statement of decision after it was requested by a party. See F.P. v Monier (2017) 3 C5th 1099. The court held that the trial court’s failure to issue the statement, as required by CCP §632, was not reversible per se but was subject only to harmless error review. See §25.78.
The Consumer Credit Reporting Agencies Act (CCRAA) and the Investigative Consumer Reporting Agencies Act (ICRAA) govern a landlord’s use of consumer credit or investigative reports as a basis for accepting or rejecting tenants. For a while the interplay of these laws was unclear; but the supreme court held that potential creditors can comply with both statutes without undermining the purpose of either and that the ICRAA was not unconstitutionally vague in Conner v First Student, Inc. (2018) 5 C5th 1026. See §26.38.
If a tenant does not claim his or her personal property after leaving the premises, the landlord may dispose of it under CC §1988 or §1993.07, which essentially provides for the property’s sale at public auction if it is worth more than $700 (residential) or the greater of $2500 or an amount equal to 1 month’s rent (commercial). This value for commercial tenancies was amended, up from $750, in 2018. See §28.21.
The legislature adjusts the statutory exemptions for enforcement of money judgments periodically; e.g., the Current Dollar Amounts of Exemptions From Enforcement of Judgments (Judicial Council Form EJ-156) was last updated April 1, 2019, and is updated every 3 years under CCP §§703.140(b), 703.150(a), (e). See §28.26.
Commercial Tenancies. Effective January 1, 2019, the landlord’s recovery of possession when a commercial tenant abandons the premises is governed by a Civil Code section that is separate from CC §1951.3, which now governs only residential tenancies. See §§1.12, 3.4, 11.18, 28.16. Under newly enacted CC §1951.35(a)–(c), a commercial landlord may recover possession of the premises without filing an unlawful detainer action after an abandonment if the landlord complies with specific notice and other statutory requirements. See §19.1B.
Effective January 1, 2019, a landlord must accept rent payments tendered by a third party on behalf of a tenant, subject to the limitations and conditions specified in CC §1947.3(a)(3). This right is unwaivable. CC §1947.3(e). See §19.5A.
The proper termination of a tenancy, even before entry of judgment for possession, also terminates the tenant’s right to enforce the covenant of quiet enjoyment. Multani v Knight (2018) 23 CA5th 837, 855 (landlord’s initiation of unlawful detainer action because of commercial tenant’s failure to pay rent terminated tenancy, thereby relieving landlord of any liability for subsequent sewage backup). See §19.18.
Anti-SLAPP Motions. Under CCP §425.16, tenants potentially have an important defense tool for retaliatory lawsuits brought by landlords against the tenants or their attorneys as provided in an anti-SLAPP motion. An amended discussion added several recently decided court of appeal cases interpreting the statute as it applies to mixed causes of action and what activities it protects. But in 1550 Laurel Owner’s Ass’n, Inc. v Appellate Div. (2018) 28 CA5th 1146, 1158, a case arising from the breach of a settlement agreement, the court of appeal concluded that CCP §92(d) “precludes a defendant from bringing a special motion to strike in a limited civil case.” See §§13.51, 17.17C.
Complaints filed by tenants for wrongful or retaliatory eviction (or wrongful endeavor to recover possession) by the landlord should always contain allegations of unprotected conduct to successfully defeat both an anti-SLAPP motion and the litigation privilege that can be raised defensively. See, e.g., Winslett v 1811 27th Ave., LLC (2018) 26 CA5th 239, cited in §§1.3, 13.51, 16.1, 17.17C.
Bringing a separate action for damages on the basis of an unlawful detainer judgment entered in favor of the tenant pending the landlord’s appeal on the judgment would be premature. The separate action would be subject to a demurrer under CCP §430.10(e) or an anti-SLAPP motion under CCP §425.16. See, e.g., Aron v WIB Holdings (2018) 21 CA5th 1069, a cautionary tale for both tenant and landlord attorneys, cited in §§2.7, 13.51, 27.17, 29.17.
In an action for declaratory relief and damages by a sublessee alleging that the sublessor breached the sublease, by among other things wrongfully maintaining an unlawful detainer action against the sublessee, a court of appeal ruled that the unlawful detainer action and service of related notices arose out of protected activity, although other causes of action arose out of unprotected activity (e.g., whether sublessee had duty to repair under terms of sublease). See Newport Harbor Offices & Marina, LLC v Morris Cerullo World Evangelism (2018) 23 CA5th 28, which also noted that the defendant only partially prevailed on its anti-SLAPP motion, so it remanded the case for further proceedings to determine whether attorney fees would be awarded and if so, the amount of fees. See §§13.51, 16.1, 16.15, 26.34.
In Hart v Darwish (2017) 12 CA5th 218, the court of appeal ruled that although a denial of an anti-SLAPP motion in an underlying lawsuit does not bar malicious prosecution liability for the underlying lawsuit, the denial of a motion for nonsuit on the merits in the underlying unlawful detainer action “conclusively establishes” that the prior suit was legally tenable, thus precluding a subsequent action for malicious prosecution; the supreme court granted review on September 13, 2017, then dismissed review and transferred the case back to the court of appeal in light of Parrish v Latham & Watkins (2017) 3 C5th 767. See §25.44.
Tenant Bankruptcies and Stay Relief to Complete Eviction. 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, vacated in part on other grounds (Bankr ED Cal 2018) 580 BR 536 (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.
Attorney fees incurred by the debtor for actions to remedy automatic stay violations by the landlord and to collect resulting damages, including attorney fees incurred on a successful appeal, are recoverable. Easley v Collection Serv. of Nevada (9th Cir 2018) 910 F3d 1286. See §21.2A.
A sanction of contempt cannot be issued for violating the automatic stay or a discharge injunction without a finding of fact that the violation was made with actual knowledge of the stay or injunction and that it applied to the creditor’s claim. See Lorenzen v Taggart (In re Taggart) (9th Cir 2018) 888 F3d 438, cert granted (2019) 139 S Ct 782 (creditor not held in contempt for violation of discharge injunction, based on showing that creditor had good faith belief that injunction did not apply to its claim, even when that belief might have been unreasonable). See §21.2A.
Payment of postpetition rent is governed by local Chapter 13 mandatory form plans as well as bankruptcy law; plans were adopted in 2018 by the bankruptcy courts in four districts in California and are available on the Internet. See summary in §21.6.
A bankruptcy court can vacate a prior discharge order that was improperly entered due to clerical mistake, oversight, or omission if the debtor was ineligible for the discharge by virtue of an illegal, repeated bankruptcy filing. Filice v U.S. (In re Filice) (Bankr ED Cal 2018) 580 BR 259. See §21.9.