April 2020 Update
Top 6 Legislative Changes. Under the Tenant Protection Act of 2019 (TPA) (Stats 2019, ch 597 (AB 1482)), effective January 1, 2020, California adopted (for a 10-year period) temporary statewide rent and eviction controls that limit rent increases in many residential tenancies (see details in §§3.65, 3.66D–3.66I) and require many residential evictions to be supported by just cause (see details in §§8.136A–8.136E). There are numerous exemptions for residential property, and the law does not apply to commercial tenancies. For short summaries of the TPA, see §§3.1B, 3.65A, 3.66D, 4.44F, 7.1, 8.136A.
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. 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 §§2.9B, 2.48–2.49, 4.15A, 6.15.
The FEHA now applies to short-term rentals transacted over the Internet. A “housing accommodation” is any building, structure, or portion of a building or structure that is occupied, or intended to be occupied, as a residence by one or more families, and any vacant land offered for sale or lease for the construction of such a building, structure, or portion of it, and by amendment in 2019, now includes one that is occupied, or intended to be occupied, under a transaction “facilitated by a hosting platform,” as defined in Bus & P C §22590. See Govt C §12927(d), cited in §2.50.
When a local government entity declares “a shelter crisis,” the entity “may adopt by ordinance reasonable local standards and procedures for the design, site development, and operation of homeless shelters” and the structures and facilities in them. Govt C §8698.4(a)(2)(A)(i). During a shelter crisis, the laws codified in CC §§1941–1942.5, which provide a statutory cause of action for habitability or tenantability, 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 §3.11.
To assist “those at risk of homelessness and to encourage landlords and tenants to permit those persons to temporarily reside on their property,” the California Legislature enacted CC §1942.8 (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 or owner temporarily permit the occupancy of the tenant's dwelling unit by an at-risk person. CC §1942.8(b). But the occupancy by such person is not permissible if the addition of another person in the dwelling unit would violate the building's occupancy limits or other applicable building standards. CC §1942.8(j). See §§3.59B, 8.27B.
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), unless the property is subject to a local rent control ordinance or the rent control provisions of the Tenant Protection Act of 2019, which limits the amount of rent increases for specified residential property. See §§3.65A, 6.130, 10.49.
Supreme Court Cases. In White v Square, Inc. (2019) 7 C5th 1019, the California Supreme Court ruled that a person has standing to bring a state law discrimination claim under the Unruh Civil Rights Act (CC §51) when the person visits an online business with the intent of using its services, but encounters terms and conditions that appear to deny that person full and equal access to the services, and then leaves the website without entering into an agreement with the business. See §2.67.
In Knick v Township of Scott (2019) ___ US __ , 139 S Ct 2162, 2167, the U.S. Supreme Court held that a real property owner may bring a claim in federal court under 42 USC §1983 when the government takes property without just compensation and that owner is not required to first bring state litigation, which was the previous test under an older case decided by the supreme court in 1985. See §§6.16, 7.14.
In Heimlich v Shivji (2019) 7 C5th 857, the California Supreme Court reviewed and clarified the proper procedure for claiming and awarding costs arising from CCP §998 offers made in arbitration proceedings. It then ruled that a request for costs under §998 was timely when it was made 15 days after an arbitrator’s award. It found, however, that the arbitrator’s belief that he lacked jurisdiction to consider costs did not constitute grounds for judicial review of the award. See §13.58.
Leasing Disclosures, Lease Provisions, and Insurance. 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 §§1.16, 3.61.
Civil Code §1962 requires the owner of one or more rental units to include, in the lease or rental agreement, the name, telephone number, and usual street address at which personal service may be effected on the owner or agent. This information must be kept current, and a new owner or manager must update it within 15 days of succeeding the previous owner or manager. But in DLI Props., LLC v Hill (2018) 29 CA5th Supp 1, the court held that after a landlord purchased the property at a foreclosure sale and the landlord’s manager entered into a new lease with the tenant, neither the landlord nor the manager were a “successor” owner or manager under §1962 so the eviction bar in §1962(c) for noncompliance did not apply. See §§1.30, 4.45, 8.49.
For a military servicemember who intends to reside in a residential unit, the total security deposit demanded or received may not exceed an amount equal to 1 month’s rent on an unfurnished unit or 2 months’ rent on an unfurnished unit. CC §1950.5(c)(2). See §§1.37, 4.24, 6.14, 8.173.
Under Health & S C §§25400.10–25400.47, a property owner has specific disclosure, remediation, and recordkeeping obligations after the owner has been notified by a local health officer that the property is contaminated by methamphetamine. In 2019, these code sections were amended and renamed the “Methamphetamine or Fentanyl Contaminated Property Cleanup Act.” Health and Safety Code §25400.10 was further amended to apply property owner site assessment, remediation, cleanup, financial liability, civil penalties, and local health officer responsibilities to a property contaminated by fentanyl as well as methamphetamine. See §§1.40, 3.10, 6.13.
In 2019, CC §2079.13 was amended to define “single-family residential property” and “single-family residential real property” to mean real property improved with one to four dwelling units, a unit in a residential stock cooperative, condominium, or planned unit development and a mobilehome or manufactured home when offered for sale or sold through a real estate broker under Bus & P C §10131.6. This definition affects hazards disclosures that must be given to lessees under CC §2079.7. See §1.40.
For any tenancy commenced or renewed on or after July 1, 2020, if the landlord’s property is exempt from the newly enacted statewide rent and eviction controls under CC §1946.2(e)(8) and CC §1947.12(d)(5), statutory notice must be provided in the rental agreement. See §§1.40, 3.66F, 3.66I, 8.136D, 8.136E.
The Violence Against Women Reauthorization Act of 2013 (VAWA) (Pub L 113–4, 127 Stat 54; 34 USC §12491) prevents a public housing agency from denying rental to, or terminating the tenancy of, a person who is or has been a victim of domestic violence, dating violence, sexual assault, or stalking. The VAWA expired in February 2019 and may be reauthorized in 2020 under pending HR 1585, 116th Cong, 1st Sess (2019), or S 2920, 116th Cong, 1st Sess (2019). Counsel would be prudent to encourage landlords to honor its substance until it can be determined affirmatively that it will not be reauthorized. See §§1.44, 2.15A, 2.27J, 8.27.
Landlords must be extremely cautious about obtaining adequate liability insurance coverage. See, e.g., Terrell v State Farm Gen. Ins. Co. (2019) 40 CA5th 497 (accident that injured tenant was not covered under landlords’ homeowners insurance policy that specifically excluded coverage for injuries arising out of insureds’ business pursuits or rental of their home). See §§1.54, 9.28.
Attorney fee clauses in leases vary greatly and sometimes are not broad enough to support an award of fees in a tort cause of action. See, e.g., Orozco v WPV San Jose, LLC (2019) 36 CA5th 375 (tenant who prevailed in action against landlord for misrepresentation arising from lease transaction was not entitled to award of attorney fees, because lease provided for fee award only in actions arising from provisions of lease or any default under it; but lease guarantor’s fraud action arising from same facts did merit attorney fee award, because guaranty broadly provided for fee award in actions against other party “arising out of or in connection with” guaranty), cited in §1.70.
Fair Housing. In Connecticut Fair Hous. Ctr. v Corelogic Rental Prop. Solutions, LLC (D Conn 2019) 369 F Supp 3d 362, 376, the court on reviewing a motion to dismiss held that allegations concerning a consumer information reporting agency that offered a service to landlords making decisions on the eligibility of prospective tenants, and that used criminal background criteria selected by the landlord from the agency’s form providing specific alternatives, stated causes of action for discriminatory housing practices amounting to disparate treatment under 42 USC §3604, failure to reasonably accommodate under the Americans with Disabilities Act of 1990 (ADA), as well as disparate impact under the Fair Housing Act (FHA). See §§2.5B, 2.27A, 2.63.
Although a California court held in 2010 that the California FEHA’s source of income protection does not require landlords to accept tenants in the federal Section 8 Housing Choice Voucher program (see Sabi v Sterling (2010) 183 CA4th 916, 943), that decision was superseded by an amendment to FEHA in 2019. See §§2.9B, 4.15A, 2.49, 7.19.
In Inclusive Communities Project v Lincoln Props. (5th Cir 2019) 920 F3d 890, the Fifth Circuit affirmed the dismissal of the action by the district court, which held that policies of not accepting tenants using Section 8 vouchers did not constitute either disparate treatment or disparate impact under the FHA, when defendants’ policy of not accepting vouchers applied to all voucher holders equally and plaintiff failed to provide a causal link between the policy and any statistical disparity on the availability of Section 8 households or any information showing the number of African-American or black voucher holders that were denied in the relevant tract. See §2.9B.
The FEHA does not prevent local governments from expanding protections to those who receive Section 8 assistance. See City & County of San Francisco v Post (2018) 22 CA5th 121 (FEHA did not preempt city’s antidiscrimination ordinance that defined “source of income” to include Section 8 housing vouchers). See §§2.9B, 4.15A.
A recent example of the failure by a housing provider to make reasonable accommodations for a disabled individual is Schaw v Habitat for Humanity (11th Cir 2019) 938 F3d 1259, which refused to consider the financial condition of the disabled person receiving federal disability benefits when he applied to receive a home from Habitat for Humanity, which was denied because he did not meet the minimum income requirement, and denying his requested accommodation that Habitat also consider his food stamps and monthly familial support as income, cited in §2.27A.
For the most recent cases that apply laws requiring owners to make reasonable accommodations in and around buildings to make them accessible to disabled persons, see §2.27E.
In Curto v A Country Place Condominium Ass’n (3d Cir 2019) 921 F3d 405, the association adopted rules for swimming pool use creating certain hours when only members of a single sex were allowed to swim. The court held that separate pool rules for men and women violated the FHA, despite the desire of the association to observe an Orthodox Jewish principle of modesty between the sexes, because the most popular times of the day and week favored men. See §2.27H.
The implementing regulation issued by HUD under the federal FHA, regarding the proof required in disparate impact housing discrimination cases (see 24 CFR §100.500) is being reexamined by HUD, as explained in 84 Fed Reg 42854 (Aug. 19, 2019). See §2.65.
The California Department of Fair Employment and Housing is authorized to prosecute all meritorious complaints under both the FEHA and specified federal fair housing laws, including the ADA and the FHA, by a 2019 amendment. See Govt C §12930(h), cited in §2.67.
The court of appeal in Ruiz v Musclewood Inv. Props., LLC (2018) 28 CA5th 15 ruled that a blind person had standing to sue the defendant under the Disabled Persons Act when the defendant’s guard dog attacked the blind person’s service dog on a public sidewalk, even though the blind person was not a customer of the defendant. See §§2.67, 5.7.
Rights and Obligations Before, During, and After Tenancy. 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 §§1.16, 3.61.
In Garcia v Myllyla (2019) 40 CA5th 990, the court of appeal upheld a judgment awarding emotional distress damages, in the amount of either $10,000 or $15,000, for each of nine tenants, as well as punitive and other damages for an egregious breach of the implied warranty of habitability. See §§3.7, 3.27, 3.35, 3.38–3.38A, 3.40, 3.67.
As of January 1, 2020, a property owner is generally prohibited from enforcing any rule or restrictive covenant that limits the display of religious symbols in entry doors or door frames; there are numerous exemptions. CC §1940.45 (newly enacted). See §§3.7G, 4.50A, 5.7.
When a local entity obtains the appointment of a receiver under Health & S C §17980.7, a lender who subsequently forecloses and becomes a temporary owner afterward is not liable for the receiver’s expenses, but the court may ensure that such expenses are paid by authorizing a receiver to place a “super-priority” lien ahead of the interests of any lender. See City of Sierra Madre v SunTrust Mortgage, Inc. (2019) 32 CA5th 648. See §3.10.
When rent is unpaid, the landlord must serve a notice allowing the tenant to comply with the lease before commencing an eviction. A significant change, effective on September 1, 2019, is that when a 3-Day Notice to Pay Rent or Quit is served under CCP §1161(2) or a 3-Day Notice to Cure or Quit is served under CCP §1161(3), the landlord must exclude “Saturdays, Sundays and other judicial holidays” in calculating the tenant’s time to comply. See amendments to CCP §1161 (Stats 2018, ch 260 (AB 2343), effective Sept. 1, 2019), explained in §§8.35, 9.44. See also §§1.31, 1.56, 1.67, 5.24A, 7.56–7.57, 8.54.
Whether employed by the owner or a management firm, a resident apartment building manager is subject to many state employment regulations affecting both compensation and the amount of rent that may be applied toward an employer’s minimum wage obligations (rent credit). See, e.g., Department of Industrial Relations Wage Order No. 5–2001, amended effective January 1, 2020, as described in §4.47.
Restrictive ordinances are often used to regulate short-term tenancies and avoid negative impacts on the quality of life in residential neighborhoods and disruption to residents. These restrictions are broad and prescribe length-of-stay terms anywhere from 1 to 30 days. For example, Santa Monica prohibits vacation rentals for 30 days or less, unless the primary resident remains on site. Rosenblatt v City of Santa Monica (9th Cir 2019) 940 F3d 439 (only home-sharing is allowed). See §§4.50F, 7.62, 7.68.
See also “Top 6 Legislative Changes,” above, which directly affect rights and obligations before, during, and after tenancy.
Anti-SLAPP Motions. Landlords have successfully invoked the anti-SLAPP statute (CCP §425.16) in defending numerous types of suits filed by tenants. See, e.g., Valuerock TN Props., LLC v PK II Larwin Square SC LP (2019) 36 CA5th1037, in which the tenant sued the landlord for its unreasonable withholding of consent to assign the tenant’s interest in the lease. After litigation commenced, the tenant made an amended lease assignment request, which the landlord again denied. The tenant then filed a second amended complaint, adding allegations about the refusal to consent to the amended assignment request. The landlord filed an anti-SLAPP motion to strike the second amended complaint, claiming that the amended assignment request and its response were settlement communications and statements made in litigation, thus protected activity, but the motion was denied. See §§5.18B, 7.78B, 10.30.
A plaintiff can proceed with a malicious prosecution claim in the face of an anti-SLAPP motion by establishing minimal merit on (or a probability of prevailing on the merits of) the claim. Olivares v Pineda (2019) 40 CA5th 343 (also denied defense based on litigation privilege to wrongful eviction cause of action arising from invalid 3-day notice to pay rent or quit). See §§5.18C, 7.78A.
Mobilehome Park Tenancies. In 2020, the California Department of Housing and Community Development (HCD) will be amending its regulations related to “registration and titling” of mobilehomes in 25 Cal Code Regs §§5535–5536.5. This is a critical issue for both mobilehome owners and park management. If ownership of a mobilehome is an issue in occupancy or litigation, counsel should ensure that the current regulations are reviewed. See §§6.1, 6.13.
Although most mobilehome parks are created under and governed by the Mobilehome Residency Law (MRL) (CC §§798–799.11), other types of mobilehome communities may exist or be created under nontraditional circumstances. In response to the homelessness crisis, if a local government enacts a shelter emergency ordinance under Gov C §8698.4, it may create shelter communities consistent with the California Residential Code (24 Cal Code Regs, pt 2.5, App X) or even under its own locally adopted standards by virtue of Govt C §8698.4(a)(2)(A). Small or large mobilehome parks for agricultural workers may be created with special rules allowed under Health & SC §17021.6(e) or the authority granted under various laws by Stats 2019, ch 866. Mobilehome parks are not uncommon on Indian reservations which are subject to tribal governance, rather than general state laws or the MRL. See §6.10.
To enable owners to pay significant arrearages of state registration fees and penalties or local personal property taxes, interest, and penalties, the legislature established a partial fee and tax waiver program for new registrations starting January 1, 2016, and it was extended another year to December 31, 2020, as codified in Health & S C §§18116.1(d) and 18550.1 and in Rev & T C §5832, as amended in 2019. See §6.12.
Although this book focuses on the parties in a landlord-tenant relationship, note that the MRL creates rights and protections not only for mobilehome tenants, but also for lenders, lienholders, park management, selling homeowners (whether or not they are also residents), and purchasers of mobilehomes as well. Canyon View Ltd. v Lakeview Loan Servicing (2019) 42 CA5th 1096. See §§6.12, 6.88, 6.92.
The prior requirement that the mobilehome be registered to the sublessor was removed temporarily, but will be reinstated by Health & S C §18550.1, effective January 1, 2021, under Stats 2019, ch 488. See §6.13.
Resident and landlord rights and responsibilities regarding the operation of childcare centers in a mobilehome were enacted by Stats 2019, ch 244. Intended to promote the development and expansion of regulated childcare, the amendments appear to include mobilehomes and mobilehome parks since the structural types identified in Health & S C §1596.78(d) “include” a broad definition of dwelling. Under Health & S C §1597.41, a written instrument, such as a lease, cannot prohibit the use of a home for family day care, but notice must be given to the landlord and licensing is required. See §6.13.
Effective July 1, 2020, the Mobilehome Residency Law Protection Act (Health & S C §§18800–18806) was established. It authorizes HCD, under the newly established Mobilehome Residency Law Protection Program, to investigate or pursue conciliation or remedies arising from a complaint by a park resident under the mobilehome laws and help to resolve or coordinate the resolution of those complaints. Health & S C §18802. HCD may not arbitrate, mediate, negotiate, or provide legal advice in connection with mobilehome park rent disputes, lease or rental agreements, or disputes arising from lease or rental agreements. Health & S C §18802(c). For details, see §6.13.
Every lease or rental agreement contains the landlord’s implied covenant of quiet enjoyment, which in part promises that the tenant’s possession will not be terminated or disturbed by the landlord or anyone deriving title from the landlord. Thus, the covenant protects the tenant from acts or omissions of the landlord that disturb the tenant’s peaceful possession of the premises, including the failure to maintain the premises and common areas in good condition. See Bevis v Terrace View Partners, LLP (2019) 33 CA5th 230 (also allowed or considered other causes of action, including nuisance, breach of implied warranty of habitability, but did not allow relief on causes of action for alleged excessive rent increases that were permitted by mobilehome park lease), discussed in detail in §§6.18, 6.31. See also §§3.5, 3.15C, 3.42, 3.48A, 6.22, 6.95.
Special resident selection criteria apply when a mobilehome park has been destroyed by a natural disaster and later reconstructed, which are set out in CC §798.62, enacted by Stats 2019, ch 504, §2. The park owner is required to offer new tenancies to previous homeowners with a valid prior tenancy, subject to many special procedures and requirements related to the offers, the terms of the offers, rents, and reoccupancy. See §6.22.
Civil Code §798.34(b) allows a homeowner living alone in a mobilehome park to have a single designated person as a companion without being charged a fee. As a result of amendments to this section by Stats 2019, ch 504, this law currently allows up to three such designations each calendar year, with only one companion allowed at any given time, unless otherwise authorized by management. The park may reject a proposed companion in a park with age restrictions if the proposed companion is unable or unwilling to provide documentation that he or she meets those age restrictions. See §§6.42, 6.102.
Park operators must have in place an emergency preparedness plan that has additional mandates since January 1, 2020, as a result of the enactment of Stats 2019, ch 299, amending Health & S C §§18603(c), 18603.1(a). See §6.51.
As a result of extensive amendments to CC §798.74 by Stats 2019, ch 504, §3, the process of park management approval of a mobilehome purchaser was significantly changed. Within 15 days after a selling homeowner gives notice of a pending sale, park management must provide to both the seller and prospective purchaser (1) a list of standards to be used to approve an application (including minimum credit scores from a consumer credit reporting agency that management requires for approval) and (2) a list of documentation that will be required to determine qualification. CC §798.74(b). There are also extensive changes to the purchaser application and approval requirements. See §§6.59, 6.61, 6.128–6.129.
Under an amendment made by Stats 2019, ch 299, Health & S C §18029.6 requires, effective January 1, 2020, that at the time of sale or rental of a used mobilehome, it must have an operable smoke alarm installed consistent with the State Fire Marshal requirements and the manufacturer’s information regarding the smoke alarm must be provided to the purchaser or renter. See §6.64.
A new form, Reasonable Accommodation Request/Modification Form, was added to the book. It must be used when a requesting party seeks an accommodation due to a documented disability, such as senior citizens with disabilities, residents who seek comfort animals, or others with existing or new disabilities. It should be submitted to park management, along with a Medical Determination of Disability form, with an application to rent, with the executed lease, or whenever a disability is diagnosed. See §6.153B.
Local Rent and Eviction Controls; Constitutional Issues. 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. See §§1.13, 7.16, 10.51.
A tenant who sues for wrongful eviction under the San Francisco Residential Rent Stabilization and Arbitration Ordinance may seek damages based on rent differential (the difference between the rent-stabilized unit that the tenant would have paid for the expected duration of her tenancy and the market rent for the unit from which she was evicted) rather than out-of-pocket losses for increased rent; trebling of such damages is also permitted. DeLisi v Lam (2019) 39 CA5th 663. See §§5.22, 7.53, 7.67–7.68, 7.75, 7.78C–7.78D.
In Reynolds v Lau (2019) 39 CA5th 953, the court of appeal held that the offering of short-term rentals by a tenant, which resulted in large and disruptive parties that disturbed neighboring tenants, was not severe enough to establish a duty to evict the tenant offering the short-term rentals, even though the owner was well informed about the facts. Reynolds also held that the tenants offended by the disruption, who were residing in a 2-unit residential, 1-unit commercial building and who signed a settlement agreement asserting the other residential unit was neither comparable nor available during relevant periods cannot later sue the landlord for violation of the San Francisco rent control law, after failing to choose the other apartment for their own occupancy. See §§4.50F, 6.18, 7.65, 7.67–7.68, 8.68A, 8.70.
A recent facial challenge to the Oakland rent control ordinance was dismissed in Ballinger v City of Oakland (ND Cal 2019) 398 F Supp 3d 560. The district court held the Oakland rent control ordinance did not constitute a physical taking and the requirement that the landlord pay relocation fees for an owner move-in eviction did not constitute a seizure in violation of the Fourth Amendment. 398 F Supp 3d at 573. See §§7.10, 7.12.
A landlord may not argue it will not receive a constitutionally fair return if it has not first petitioned for an increase in the maximum allowable rent. 1041 20th Street, LLC v Santa Monica Rent Control Board (2019) 38 CA5th 27, 45. See §§7.13, 7.41–7.42, 7.51.
To encourage the construction of rental housing, municipalities have begun exempting newly constructed secondary units, often called “in-law” units or ADUs (accessory dwelling units). See e.g., Berkeley Mun C §13.76.050N. See §§7.18, 7.24. See also §§4.49A.
San Francisco became the first city in California to require legal counsel for tenants facing evictions and the second in the nation behind New York. Under an initiative, Proposition F, the city must provide an attorney to residential tenants through all stages of the eviction process until the eviction notice or unlawful detainer complaint is withdrawn, the case is dismissed, or a judgment in the matter is entered. The legal representation is full scope and available to a tenant within 30 days after the tenant is served with an eviction tenancy notice or on the service of an unlawful detainer complaint, whichever occurs first. See §7.53.
Amendments in December 2018 to the San Francisco Residential Rent Stabilization and Arbitration Ordinance were added in §37.10A(i), which makes it unlawful for a landlord to attempt to recover possession by first increasing the rent in bad faith with the intent to defraud, intimidate, or coerce the tenant into vacating. (Former §37.10A(i) was renumbered §37.10A(j).) Section 37.10B was amended so that an attempt to recover possession with a bad faith threat of a rent increase constitutes tenant harassment. See §7.53.
Under West Hollywood Mun C §17.52.140, tenant buyout agreements are regulated. Before making a buyout offer, the landlord must provide each tenant in the unit a written disclosure on an RSD form. The tenant must sign and date the form, and the landlord must keep the signed form for 5 years. The tenant may rescind the buyout agreement within 30 days after signing by all parties and at any time if the agreement fails to meet the requirements of §17.52.140. See §7.54.
Throughout 2019, cities in the state enacted rent stabilization and just cause eviction laws. In southern California, the cities include Culver City and Inglewood. When landlords started serving 60-day notices of termination of tenancy in advance of CC §1946.2 taking effect, other cities quickly instituted a moratorium on evictions without just cause. In southern California, the cities passing such moratoriums included Redondo Beach and Los Angeles for non-rent-controlled units. Effective January 1, 2020, CC §1946.2 requires just cause for evictions in certain residential units built within the last 15 years throughout the state unless the unit is exempt. The 15-year limitation is a moving target. The state law will not cover units subject to a local rent control law. See §7.54.
Santa Monica regulates the short-term vacation rental market by authorizing licensed home-sharing (rentals in which residents remain on-site with guests) but prohibiting all other short-term home rentals of 30 consecutive days or less. Such legislation is not preempted by either the Communications Decency Act or the First Amendment rights of HomeAway.com, Inc., or Airbnb, Inc. HomeAway.com, Inc. v City of Santa Monica (9th Cir 2019) 918 F3d 676. See §7.62.
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 §7.62.
Terminating Tenancies and Eviction Actions. 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 under CCP §1161. 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, the 3-day notice period under CCP §1161(2)–(3) explicitly excludes weekends and other judicial holidays. Consequently, if a landlord now serves the notice on a Friday, the tenant will have until the following Wednesday to cure. See §§5.24A, 8.35, 8.54, 9.44. See also §§1.31, 1.56, 1.67, 7.56–7.57, 8.65–8.66.
Since September 1, 2019, calculating the 5-day notice period in which to file an answer, or a demurrer or motion to quash or strike, after alleged service of the summons and complaint excludes judicial holidays, and Saturdays and Sundays are considered such holidays. See Stats 2018, ch 260 (AB 2343) (amending CCP §1167). See §§10.1, 10.9, 10.23, 10.29, 10.42. See also §§5.24A, 13.2.
In Bawa v Terhune (2019) 33 CA5th Supp 1, the superior court’s appellate division held that when a conventional housing landlord refused to accept a rent check that was one cent short and proceeded to evict for nonpayment of rent, the tenant may assert the landlord’s bad faith as an unlawful detainer defense. See §§7.57, 8.60, 10.50. See also §§1.42, 6.18, 6.74.
A commercial tenant is entitled to compensation on condemnation of the premises, despite a lease provision that the lease would terminate if the building were condemned. This is intended to compensate a tenant for items such as loss of good will in a business, which can exist independent of the leasehold interest. Thee Aguila, Inc. v Century Law Group (2019) 37 CA5th 22. See §8.6.
An additional cause of action to that of wrongful eviction against the landlord is a malicious prosecution action against the landlord and the landlord’s attorney. See, e.g., Connelly v Bornstein (2019) 33 CA5th 783 (tenant’s claim for malicious prosecution arose from unlawful detainer suit that landlord had voluntarily dismissed; court of appeal held that prevailing tenant in initial lawsuit has 2 years to bring malicious prosecution against losing landlord but only 1 year to sue landlord’s attorney). See §8.157A. See also §5.18C.
In pretrial discovery, CCP §2030.210 now provides that a party responding to interrogatories may request that the propounding party provide the interrogatories in an electronic format within 3 court days of the request. Conversely, a propounding party, after receipt of the answers to interrogatories, may request the responding party to provide the answers to interrogatories in an electronic format. On the format of the electronic information, see §11.17.
In pretrial discovery, CCP §2030.280 now provides for similar procedures in requests for production of documents. See §11.21.
Regarding mandatory sanctions in pretrial discovery, CCP §2023.050 imposes a $250.00 sanction when certain bad faith conduct occurs in discovery. See §11.29.
If an action was filed at least 5 years before the date of trial, the defendant should immediately move for mandatory dismissal under CCP §583.360. A mandatory dismissal is a decision on the merits that entitles the prevailing party to attorney fees under CC §1717 when there is a contractual basis for attorney fees. A mandatory dismissal under CCP §583.360 prevents the plaintiff’s later attempt to voluntarily dismiss the case under CCP §581(b)(1). Cole v Hammond (2019) 37 CA5th 912. See §§12.35, 13.27.
Under some circumstances, misconduct by the landlord and its attorney will warrant partial terminating sanctions. See, e.g., United Grand Corp. v Malibu Hillbillies, LLC (2019) 36 CA5th 142 (misconduct justified partial terminating sanction dismissing request for excessive attorney fees in action for unpaid rent that landlord won by default against some parties and settled as to remaining party; attorney’s appeal of sanctions order was dismissed under disentitlement doctrine). See §§13.5, 13.16.
Under CCP §473(b), 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 an attorney’s sworn affidavit. In Pagnini v Union Bank (2018) 28 CA5th 298, the court of appeal concluded that the trial court was obligated to grant relief under §473(b), when counsel submitted a sworn declaration stating that he had mistakenly failed to respond to the demurrer by timely filing an amended complaint; in other words, a demurrer was effectively a dismissal motion for purposes of the mandatory relief afforded by §473(b). See §13.8.
In Jackson v Kaiser Found. Hosps., Inc. (2019) 32 CA5th 166, the court ruled that the mandatory relief afforded under §473(b) is unavailable to undo a voluntary dismissal. See §13.8.
If party makes a CCP §998 offer before trial, the offeree’s costs must be included in the analysis to determine whether the offeree received a more favorable judgment. If multiple offers are made by one party, then the trial court must include all costs reasonably incurred up to the date of the final offer. Hersey v Vopava (2019) 38 CA5th 792. See §13.26.
Effective September 1, 2020, a tenant will have 15 days to file a claim of exemption if the notice of levy was personally served, and 20 days to file the claim if notice was served by mail; also effective the same date, a creditor will have 15 days from the date of the service of a claim of exemption to give notice of opposition to the judgment debtor’s claim of exemption. CCP §703.520, as amended by Stats 2019, ch 554 (SB 616). See §13.74.
Effective September 1, 2020, new exemptions from garnishments were created in CCP §§704.220 and 704.225. Under CCP §704.220, (1) there will be an automatic exemption equal to the minimum basic standard of adequate care for a family of four, as defined and annually adjusted by the State Department of Social Services, and (2) any levy against the judgment debtor’s deposit account must include a description of that exemption. Under CCP §704.225, there will be a new exemption applicable to a judgment debtor’s deposit account, which is not otherwise exempt, for money that is necessary for the support of the judgment debtor and their spouse and dependents. See §13.74.
Tenant Bankruptcies, Assuming or Rejecting Lease, and Stay Relief to Complete Eviction. A creditor may not be liable for violating the automatic stay if the debtor had no interest in the property at the time of bankruptcy. See Jones v Machado-Powell (In re Jones) (BAP 9th Cir 2018) 2018 Bankr Lexis 3156 (unpublished opinion) (debtor had no possessory right because creditor’s eviction of debtor and sale of debtor’s personal property at the premises occurred prior to bankruptcy). See §14.6.
Attorney fees incurred by the debtor for actions to remedy stay violations and to collect resulting damages, including attorney fees incurred on a successful appeal, are recoverable. Easley v Collection Serv. of Nev. (9th Cir 2018) 910 F3d 1286. See §14.6.
When a creditor brings a motion for relief from the automatic stay it initiates a “distinct proceeding” that terminates in a final, appealable order when the bankruptcy court rules dispositively on the motion. Ritzen Group, Inc. v Jackson Masonry, LLC (2020) 2020 US Lexis 526, ___ S Ct ___. Consequently, under 28 USC §158(c)(2) and Fed R Bankr P 8002(a), the parties must promptly file an appeal on the bankruptcy court's order granting or denying the stay relief motion within 14 days after entry of the order. See §14.29A.
In a bankruptcy case involving a debtor engaged in a marijuana-related business, In re Cwnevada LLC (D Nev 2019) 602 BR 717, the court acknowledged that Chapter 11 relief may be appropriate for an individual or an entity directly engaged in the business of marijuana, but the court found numerous reasons indicating that the interests of creditors and the debtor would be better served by dismissing the case under 11 USC §305(a)(1). See §14.32.
Some debtors try to avoid the dismissal of the bankruptcy on the creditor’s or the court’s motion by attempting to voluntarily dismiss the case before the hearing. This is not allowed in the Ninth Circuit if the debtor had filed the bankruptcy in bad faith. See recent cases on whether the right to dismiss is absolute in §14.32.
A prevailing landlord may recover attorney fees incurred in an adversary proceeding if the lease contains an attorney fees provision. See, e.g., Zito v Douglass Enters. (In re Zito) (BAP 9th Cir 2019) 604 BR 388 (creditor had attorney fee claim in context of a guaranty agreement that was subject of adversary proceeding, but fee award was premature until related state court action regarding underlying breach concluded). See §§14.32, 14.51.
A bankruptcy court may hold a creditor in civil contempt for deliberately violating a discharge order only when there is not a “fair ground of doubt” about whether the creditor’s conduct might be lawful under the discharge order. See Lorenzen v Taggart (In re Taggart) (2019) ___ US ___, 139 S Ct 1795. See §14.56.
The form in §14.62, Objection of Landlord to Debtor’s Motion to Extend Deadline to Assume or Reject Nonresidential Lease, was substantially revised to reflect current bankruptcy and business practices.
Two new forms, letter agreements concerning (1) debtors’ liquidation of inventory and store-closing sale and (2) expedited procedures for rejecting unexpired leases and abandonment of personal property are in §§14.62B and 14.62D.