June 2020 Update
Statewide Eviction Control. Most residential tenancies are governed by the new statewide eviction control law that does not permit a landlord to terminate the tenancy unless there is just cause. The Tenant Protection Act of 2019 (TPA) (Stats 2019, ch 597 (AB 1482)) became effective January 1, 2020, and eviction control provisions are codified in CC §1946.2. Under the TPA, an owner of residential real property (with certain exceptions) cannot terminate the tenancy without “just cause,” as specifically defined, when the tenant has continuously and lawfully occupied the residential real property for 12 months. The cause for termination must be stated in a written notice to terminate. A “just cause” termination can be either “at-fault” or “no-fault.” For full discussion, see §§5.4A–5.4E.
An owner of residential property subject to the just cause eviction protections in CC §1946.2 must provide notice of these protections to the tenant as discussed in §5.4E.
Before a landlord serves a notice to terminate a tenancy under CC §1946.2(b)(1)(B) because of a curable lease violation, the owner must “first give notice of the violation to the tenant with an opportunity to cure” under CCP §1161(3). Note that this additional notice requirement distinguishes an eviction under CC §1946.2(b)(1)(B) from one that occurs for a similar reason in a commercial tenancy or a residential tenancy exempt from CC §1946.2, which still only requires a single 3-day notice under CCP §1161(3). For a memorandum of the law supporting a demurrer for failure to comply with the additional notice requirement, see §13.45. For an affirmative defense for failure to comply, see form in §14.59.
Although CC §1946.2(b)(2) does not specify the notice period for no-fault just cause evictions, counsel must refer to other statutory guidance. In sum, the notice period for no-fault just cause evictions require a 30-day or 60-day notice depending on the length of the tenancy (see §§7.1–7.1A), except for Ellis Act evictions, which still require a 120-day or 1-year notice (see §§17.14, 17.27, 17.29).
Emergency Rule 1 from the Judicial Council. To protect Californians from losing their homes during the COVID-19 pandemic, the California Judicial Council adopted temporary emergency rules on April 6, 2020, that effectively stay most eviction actions. See §§11.2, 12.2A, 25.65.
Fair Housing Laws and Evictions. The California Fair Employment and Housing Act (FEHA) (Govt C §§12900–12996) was amended in 2019 to prohibit housing discrimination on the basis of a person’s veteran or military status. See §14.22.
Although a California court held in 2010 that the FEHA’s source of income protection does not require landlords to accept or renew leases for tenants in the federal Section 8 Housing Choice Voucher program (see Sabi v Sterling (2010) 183 CA4th 916), that decision was superseded by an amendment to FEHA in 2019, which added source of income to protections for tenants receiving rental assistance from a government agency in Govt C §12955(p). See §§18.13, 18.19.
Rights and Obligations Before, During, and After Tenancy. A landlord must not, with intent to terminate a tenancy, cut off any utility, change the locks or otherwise prevent the tenant from entering the premises, remove doors or windows, or remove the tenant’s belongings. CC §789.3. The utilities covered by §789.3 include water, heat, light, electricity, gas, telephone, elevator, and refrigeration, whether or not they are under the direct control of the landlord. See §3.6.
Unless the rental property is subject to a local rent control ordinance or the rent control provisions of the TPA, which limits the amount of rent increases for specified residential property, a landlord must give a 90-day notice of a rent increase for a residential tenancy if the increase is greater than 10 percent of the rent charged to the tenant during the previous 12 months. CC §827(b)(3), amended by Stats 2019, ch 595 (AB 1110) (increasing notice period from 60 to 90 days). See §§6.42, 17.1E. See also §5.4B.
Under CC §1942.8, effective January 1, 2020, and ending January 1, 2024, a tenant may temporarily permit a person who is at risk of homelessness to occupy the dwelling, regardless of the terms of the lease or rental agreement. However, the landlord must give written approval. See §§6.46, 16.3, 24.1.
Local Eviction Controls and Constitutional Issues. Under the Costa-Hawkins Rental Housing Act (CC §§1954.50–1954.535), any building that has a certificate of occupancy issued after February 1, 1995, or any new construction that was exempted by a local ordinance before February 2, 1995, is permanently exempted from local control. But a building that had a certificate of occupancy issued after February 1, 1995, may still be become subject to California’s new rent and eviction control laws that became effective January 1, 2020. See §17.1E.
Some local rent control ordinances exempt all dwellings (or parcels) with fewer than a specified number of units. In a case arising from the Los Angeles Rent Stabilization Ordinance (LARSO), renting individual bedrooms in a single-family home disqualified an owner from claiming the exemption when occupants did not have access to all such rooms. See Chun v Del Cid (2019) 34 CA5th 806, discussed in §§17.4, 17.21. See also §14.30.
A court of appeal upheld the trial court’s authority to invalidate broad releases of claims obtained by the landlord during a pending class action initiated by tenants for violation of the local rent control ordinance, when the releases were obtained through “misleading, coercive and otherwise improper communications.” Brown v Upside Gading, LP (2019) 42 CA5th 140. See §17.4A.
Amendments to the San Francisco Residential Rent Stabilization and Arbitration Ordinance were added in §§37.10A–37.10B, which make it unlawful for a landlord to attempt to recover possession by increasing the rent in bad faith with the intent to defraud, intimidate, or coerce the tenant into vacating. Any attempt to recover possession with a bad faith threat of a rent increase constitutes tenant harassment. See §§17.16–17.17.
Although the San Francisco ordinance requires that an owner move-in eviction be in “good faith, without ulterior reasons and with honest intent” (SF Adm C §37.9(a)(8)), and that the just cause ground for eviction be the “dominant motive” for recovering possession (SF Adm C §37.9(c)), a landlord cannot be barred from enjoying the benefits of an apartment he owns and wishes to occupy as his primary residence “simply because it had rented more cheaply than another, noncomparable unit in his building.” Reynolds v Lau (2019) 39 CA5th 953, 970. See §§17.17, 29.22.
That an eviction be brought in “good faith” and with “honest intent” in effecting a move-in for a relative of the landlord under San Francisco Residential Rent Stabilization and Arbitration Ordinance is not unconstitutionally vague. DeLisi v Lam (2019) 39 CA5th 663 (also upheld constitutionality of treble damages provision). See §§17.17, 17.23.
Under a 2020 amendment to the Ellis Act, the date of withdrawal for the units as a whole, for purposes of calculating the time periods for the required offer to rerent under Govt C §7060.2, is “the latest termination date among all tenants” within the units, as stated in the notices required by Govt C §7060.4(b)(4) and (5); but a landlord’s “further voluntary extension of a tenancy beyond the date stated in the notices” does not extend the date of withdrawal. Govt C §7060.4(b)(6). See §17.40.
The Ellis Act does not permit a landlord to refuse “to make a written rerental offer to any tenant or lessee who occupied a unit” when the landlord gave the public entity notice of its intent to withdraw the units under Govt C §7060.2(b)(3) or (c). Also, when a unit has been rerented to another in violation of the Ellis Act, the former tenant is entitled to damages of up to 6 months’ rent at the former rental contract level, and payment of punitive damages does not extinguish the owner’s obligation to offer the rental unit to the former tenant who was displaced under the Ellis Act. See §17.46.
Terminating Tenancies and Eviction Actions. Under CC §§3485–3486.5, 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 §§5.6, 6.48–6.49.
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 court 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. Since September 1, 2019, however, calculation of the 3-day notice period under CCP §1161(2)–(3) explicitly excludes 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, 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 included weekends but excluded other legal holidays. Since September 1, 2019, however, computing the 5-day period to respond explicitly excludes weekends and other judicial holidays. CCP §1167. See §§6.25–6.27, 11.4, 14.3.
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, 13.9, 20.2.
A landlord may not refuse a tenant’s rent check that is one cent short, thereafter serve a notice to pay rent or quit, and then require that the tenant re-tender the rent. Bawa v Terhune (2019) 33 CA5th Supp 1. See §§6.34, 6.40, 14.44, 17.17, 29.22.
Although CCP §1161b was set to expire in its entirety by its own terms at the end of 2019 unless extended, it was amended to delete the December 31, 2019, sunset date, thereby extending its provisions indefinitely. Thus, the 90-day notice period for terminating month-to-month residential tenancies after foreclosures will continue, and the revived Protecting Tenants at Foreclosure Act of 2009 (PTFA) will provide the same protection as California law. See §§6.50, 20.6, 20.8.
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.
For additional settlement strategies and tips on drafting settlements agreements in unlawful detainer actions, see newly revised sections in §§9.13, 9.17–9.20.
Although the California Supreme Court held that in forma pauperis litigants who receive a fee waiver must be provided with a court reporter for hearings and trial (see Jameson v Desta (2018) 5 C5th 594), the court did not address (and the enactment of Govt C §68634.5 or the adoption of Cal Rules of Ct 3.50–3.58 did not alter) the common law rule that appellants appearing in forma pauperis traditionally have no right to a free reporter’s transcript. But for parties who qualify, the cost of the reporter’s transcript may be borne by the Transcript Reimbursement Fund (operative date extended by a 2019 amendment until January 1, 2024). See §§10.11B, 13.48A, 23.21, 26.17, 29.32.
Whether a motion to quash service of summons is the proper remedy to test whether a complaint states a cause of action for unlawful detainer is currently pending before the California Supreme Court in Stancil v Superior Court (review granted March 27, 2019, S253783, 2019 Cal Lexis 2326; lower court’s superseded opinion was unreported). See §§11.28, 13.13A, 30.10.
On special procedures in unlawful detainer actions affecting military servicemembers, provided under by both federal state law, such as protections from default judgments, stay of evictions following foreclosure, and trial continuances, see §§12.2, 12.28, 20.13, 25.65.
A court of appeal held that a defaulting party may file a motion for new trial on grounds that the default judgment contains “error in law” in calculating damages. See Siry Inv. v Farkhondehpour (2020) 45 CA5th 1098; alternatively, when a default judgment was erroneously entered, the tenant may move under CCP §473 to set it aside or file an appeal instead. See, e.g., Siry Inv. v Farkhondehpour, supra; Lasalle v Vogel (2019) 36 CA5th 127, discussed in §§12.4, 12.27.
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 §13.48 and Note in §14.3.
The Fair Employment and Housing Act (FEHA) (Govt C §§12900–12996) was amended, effective January 1, 2020, to prohibit housing discrimination on the basis of a person’s veteran or military status. Also, the FEHA now (1) prohibits discrimination on the basis of the tenant’s receiving government rent subsidies, such as a Section 8 voucher, and (2) has a broader definition of race, a protected class that includes traits “historically associated with race” such as “hair texture” and “protective hair styles,” including braids, locks, and twists, as defined in Govt C §12926(w)–(x). See §14.22.
When a local government entity declares “a shelter crisis,” the entity may adopt “reasonable local standards and procedures for the design, site development, and operation of homeless shelters” and the structures and facilities in them. During a shelter crisis, the laws codified in CC §§1941–1942.5 (which provide a statutory cause of action for habitability or tenantability), but not the protections under implied warranty of habitability, are suspended for homeless shelters, provided that the entity “has adopted health and safety standards for homeless shelters and those standards are complied with.” Govt C §8698.4(a)(2)(A)(ii). See §§14.24, 15.5A, 16.3.
Procedures for defending evictions arising from discrimination on the basis of a tenant’s immigration or citizenship status are in 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. See new revisions to affirmative defenses in answer form in §14.59.
Under CCP §1161.3(a), evictions on the basis of domestic violence and other abuses are prohibited. Further amendments to this law added special nondisclosure requirements and other methods of documenting an occurrence of domestic violence. See amendments to affirmative defense in §14.59.
During the initial client communication with the tenant regarding an eviction, the possibility of filing a separate, affirmative suit for habitability, retaliation, or statutory violations rather than attempting first to enjoin the eviction action should always be considered. Although filing a suit against the landlord will not automatically stay the unlawful detainer proceedings, there are other tangible benefits. For expanded discussion of strategies for success on an affirmative suit, see §§15.7–15.7E.
To assist “those at risk of homelessness and to encourage landlords and tenants to permit those persons to temporarily reside on their property,” CC §1942.8 was enacted (effective January 1, 2020, and only until January 1, 2024). Despite any other law or the terms of the lease or rental agreement, a tenant may with the written approval of the landlord temporarily permit the occupancy of the tenant’s dwelling unit by an at-risk person. CC §1942.8(b). On the effect of this law on evictions, see §§16.3, 24.1.
Failure to comply with the recertification process for federal rental assistance programs may precipitate an eviction action. Some courts have held that in order to rise to the level of material noncompliance, the housing authority or owner must prove deliberate fraud, and the housing authority may consider—before deciding whether to terminate assistance—if it will exercise its discretion to take into account factors identified in 24 CFR §982.552(c)(2)(i). Crooks v Housing Auth. (2019) 40 CA5th 893, 910 (case remanded to housing authority to exercise its discretion to consider “the seriousness of the case, the extent of participation or culpability of individual family members, mitigating circumstances related to the disability of a family member, and the effects of denial or termination of assistance on other family members who were not involved in the action or failure”). See §18.19.
In Johnson v Housing Auth. (2019) 38 CA5th 603, the court of appeal held that due process was satisfied in the pretermination administrative hearing process, in which the hearing officer issued a written decision that stated briefly the reasons for his decision, which were sufficient to advise the tenant of the basis for her termination from the Section 8 program, including that she failed to supply the housing authority with the required eviction notice; she committed serious and repeated violations of her lease; and she was evicted specifically for these violations. See §18.20A.
Landlords who seek and commercial tenants defending eviction because of a dispute about the tenant’s exercise of its lease term renewal or extension rights must be cautious. See Smyth v Berman (2019) 31 CA5th 183 (if renewal of particular lease provision is not provided for explicitly, and provision is not essential, carryover of that provision will not always be presumed; tenant’s right of first refusal to purchase commercial property was not considered essential). See §19.10B.
Effective only from September 8, 2008, through the end of 2019, a foreclosing trustee or authorized agent was required to post and mail by first class an additional notice to the tenant occupants, concurrently with the mailing to the owner of the notice of trustee sale (nonjudicial foreclosure), for residential real property if the billing address for the loan note was different from the property address. See former CC §2924.8(d), which was not extended further by legislative amendment, cited in §20.7.
Effective January 1, 2020, discovery law in CCP §2023.050 requires a court to impose a $250 sanction against a party, person, or attorney on finding that the party, person, or attorney (1) failed to respond in good faith to a document request, (2) produced the requested documents within 7 days of a motion to compel that was filed by the requesting party as a result of the failure to respond in good faith, or (3) failed to meet and confer in person, by phone, or by letter to resolve the dispute regarding the request. See §§23.1, 23.49, 23.52.
Under CCP §2016.090, effective January 1, 2020, the parties may stipulate to initial disclosures in pretrial discovery, but note that this section is not applicable to unlawful detainer actions. CCP §2016.090(b)(1). See §23.1.
If the tenant is a member of the military, he or she may be protected from the speedy trial requirements of the California unlawful detainer statutes or immediate execution of judgment and eviction by statutes that specifically protect military servicemembers. For example, under the Servicemembers Civil Relief Act in 50 USC §3951(b), the court has broad equitable powers and may (on its own motion) and must (if a request is made by or on behalf of a servicemember whose ability to pay the agreed rent is materially affected by military service) either (1) stay the proceedings for a period of 90 days, unless (in the opinion of the court) justice and equity require a longer or shorter period of time, or (2) adjust the obligation under the lease to preserve the interests of all parties. See §25.65.
In an affirmative suit for habitability violations, in which the tenant plaintiff was awarded less than either of the two CCP §998 offers made by the landlord, the court of appeal held that the trial court erred in failing to add the tenant’s pre-offer costs to the damages award for purposes of determining whether she received a judgment more favorable than the offers within the meaning of §998; but the court cannot add prejudgment interest as a “cost” to the amount of the judgment in calculating whether the judgment was greater than the §998 offers. Hersey v Vopava (2019) 38 CA5th 792. See §§26.21, 26.25.
In United Grand Corp. v Malibu Hillbillies (2019) 36 CA5th 142, the fifth appeal in a commercial rent dispute, the court of appeal criticized the appellant landlord’s failure to provide a cogent argument supported by legal analysis and citation to the record, and meritless claims of error. The court found that pervasive misconduct by the landlord and its attorney justified the partial terminating sanction which dismissed a prayer for attorney fees. The appeal by the landlord’s attorney of a sanctions order was dismissed because he had been found in contempt of court for failing to pay sanctions and was the subject of an outstanding bench warrant. See §26.30.
Briefs filed electronically in the court of appeal must comply with the formatting requirements of Cal Rules of Ct 8.74, including providing a text-searchable portable document format and electronic bookmarks to each heading, subheading, and the first page of any component of the document, including the table of contents, table of authorities, and certificate of word count. Cal Rules of Ct 8.74(a), amended effective January 1, 2020. See §29.34.
Any petition for rehearing or answer to a petition for rehearing must comply with all relevant provisions of Cal Rules of Ct 8.204, including the length provisions in Cal Rules of Ct 8.204(c)(5). Cal Rules of Ct 8.268(b)(3), amended effective January 1, 2020. See §29.36.
Under CC §1950.5(c)(2), effective January 1, 2020, a landlord cannot demand or receive security, however denominated, from a military servicemember, who rents residential property in which the servicemember will reside, in an amount or value in excess of an amount equal to 1 month’s rent, in the case of unfurnished residential property, or in excess of an amount equal to 2 months’ rent, in the case of furnished residential property, in addition to any rent for the first month paid on or before initial occupancy. See §§31.1, 31.5.
Commercial Tenancies. Covenants or options to extend or renew leases are sometimes part of a residential lease, although they are more common in commercial leases. If the covenant does not specify the terms of the extension or renewal, the essential terms of the original lease are presumed to apply. But if the renewal of a particular term of the lease is not provided for explicitly, and the term is not essential, the carryover of that provision will not always be presumed. Smyth v Berman (2019) 31 CA5th 183 (right of first refusal to purchase commercial property not considered essential). See §19.10B.
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 automatic stay violations that occur in the context of landlord-tenant disputes and resulting evictions, the consequences can be severe and costly. See, e.g., In re Paxton (Bankr ND Cal 2019) 596 BR 686, 694, modified on other grounds (Bankr ND Cal, Aug. 12, 2019, No. 11-10112) 2019 Bankr Lexis 1858 (more than 1 year after tenants filed their bankruptcy petition, landlord filed declaratory relief action in state court against tenants regarding prepetition dispute about habitability and to obtain property access to make required repairs; state court action was tried and resulting judgment was void even though landlord had no knowledge of bankruptcy). See §21.2A.
Under 11 USC §362(k)(1), a tenant may obtain sanctions, compensatory damages, attorney fees to enforce the stay, and punitive damages against a landlord for a “willful” violation of the automatic stay. Vu v Lin (In re Vu) (Bankr ED Pa 2018) 591 BR 596 (landlord willfully violated stay by locking tenant out of premises before effective date of tenant’s voluntary surrender of premises). See §21.2A.
If the eviction is valid and does not violate the automatic stay, then the landlord is not liable for damages under 11 USC §362(k) for the sale of the tenant’s personal property remaining on the premises. Jones v Machado-Powell (In re Jones) (BAP 9th Cir 2018) 2018 Bankr Lexis 3156 (unpublished opinion). See §21.2A.
A bankruptcy court may hold a creditor in civil contempt for deliberately violating a discharge order when there is not a “fair ground of doubt” about whether the creditor’s conduct might be lawful under the discharge order. Taggart v Lorenzen (2019) 587 US ___, 139 S Ct 1795. This is an objective standard. Freeman v Nationstar Mortgage LLC (In re Freeman) (BAP 9th Cir 2019) 608 BR 228. See §21.2A.
Some debtors try to avoid the dismissal of the bankruptcy on the landlord’s or the court’s motion by attempting to voluntarily dismiss the case before the stay relief hearing. This is not allowed in the Ninth Circuit if the debtor had filed the bankruptcy in bad faith. But some courts outside the Ninth Circuit recognize a debtor’s absolute right to voluntarily dismiss its case; other courts, like In re Marinari (Bankr ED Pa 2019) 596 BR 809, 820, hold that whether the debtor’s right to a voluntary dismissal is absolute remains unresolved. See §21.3.