April 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 and throughout the tenancy. A companion statute enacted in the same bill, Govt C §53165, expressly preempts local ordinances and regulations that are inconsistent with CC§1946.8. See Stats 2018, ch 190, §§1, 4, discussed in §§1.41, 3.7H, 8.27A, 8.110, 8.123, 8.129, 8.133, 10.60C, 12.62B. See also §§2.27J, 4.44A, 6.14, 6.19, 6.79, 8.70, 12.61.
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 practitioners. See §§2.47, 4.2C, 5.4B, 5.27, 5.37, 5.39, 9.17A, 9.21, 10.4–10.5, 10.7, 10.9.
Book Enhancement: Hoarding in Rental Housing. New sections in chapter 4 were added to address tenant hoarding in rental units, which 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 recommended. See §§4.43D–4.43X.
Leasing Disclosures, Lease Provisions, and Insurance. In Petrolink, Inc. v Lantel Enters. (2018) 21 CA5th 375, the court held that after a commercial tenant validly exercises an option to purchase under the lease agreement, the tenant becomes a vendee in possession and is entitled to an offset against the purchase price for any rents paid after the exercise of the option and before the sale is consummated, adjusted by the value of the selling landlord’s lost use of the purchase money and considering the equities between the parties because of the delayed performance. See §1.9.
On December 22, 2017, the California Tax Credit Allocation Committee (CTCAC) issued a memorandum to all property owners and management agents of Low Income Housing Tax Credit (LIHTC) properties to implement the Violence Against Women Reauthorization Act of 2013 (VAWA). While the IRS has yet to release official guidance, CTCAC began to require, on January 1, 2018, that tax credit properties in California comply with CTCAC’s “Violence Against Women Reauthorization Act of 2013 LIHTC Information and Checklist.” See §1.44.
Landlords must consider insurance needs from numerous perspectives. Primarily, as owners, landlords must decide what type of insurance coverage to purchase for protecting themselves from various risks, damages, and claims. When purchasing insurance, landlords must know that insurance applications contain questions about both pending and resolved claims against the landlord, who must first examine property records carefully before answering them. Many form leases now warn tenants that they may want to carry renter’s insurance, because an owner’s policy will not cover most losses suffered by a tenant. See §§4.43B, 4.49B.
Fair Housing. Although a district court held that the practice of requiring prospective tenants to show eligibility to reside in a mobilehome park, based on possession of an original Social Security card or passport, U.S. visa, and original arrival departure immigration forms, did not present a disparate impact violation of the Fair Housing Act, this ruling was reversed in a later decision, de Reyes v Waples Mobile Home Park LP (4th Cir 2018) 903 F3d 415, 432 (defendant’s policy requiring tenants to provide legal status documentation disparately impacted Latinos). See §§2.5D, 2.65.
The California Fair Employment and Housing Act (FEHA) (Govt C §§12900–12996) 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 anti-discrimination ordinance that defined “source of income” to include Section 8 housing vouchers). See §§2.9B, 4.15A.
There has been a proliferation of online service providers offering medical documentation to support accommodation requests for assistance animals by persons with disabilities. Counsel in cases involving medical documentation must be able to provide in court factual support for medical opinions on the existence, nature, and major life activity impairments related to the alleged disabilities and not just the opinions. See new authorities cited in §2.27B.
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.
If an accommodation has been attempted and did not work, and there is no other accommodation that can be identified, then the landlord may not be further obligated to engage in an interactive process with the tenant. Similarly, a tenant must be able to show that the requested accommodation is necessary to achieve equal housing opportunity, when measured against any alternatives offered by the housing provider. Vorchheimer v Philadelphian Owners Ass’n (3d Cir 2018) 903 F3d 100. See §2.27F.
In Vogel v Harbor Plaza Ctr., LLC (9th Cir 2018) 893 F3d 1152, the Ninth Circuit held that by treating the attorney fee schedule as presumptively reasonable, rather than using the lodestar approach, the district court misinterpreted local rule and abused its discretion; also, the court’s erroneous methodology may have affected the fee award, because plaintiff achieved practically all the relief sought, but the court awarded him only a tiny percentage of the requested fees. See §2.27G.
The failure of a landlord to remediate known harassment of a tenant by other tenants on the basis of protected characteristics may constitute discrimination under the Fair Housing Act. In Wetzel v Glen St. Andrew Living Ctr. (7th Cir 2018) 901 F3d 856, the Seventh Circuit reversed the dismissal by the district court and held that not taking action against third-party harassment by other residents on the basis of the plaintiff’s prior same-gender relationship constituted gender discrimination prohibited by the FHA, See §2.27M.
Rights and Obligations Before, During, and After Tenancy. 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), (e). See §§1.31, 1.41, 1.48, 4.30, 6.14, 8.46.
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 §1162(2) or a 3-Day Notice to Cure or Quit is served under CCP §1162(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.
Under Pub Res C §25402.10, gas and electric utilities must keep records of the energy consumption data of all commercial buildings or a building that has five or more residential or mixed-use active utility accounts that they serve. The California Energy Commission must adopt regulations for public disclosure of energy usage data. See Pub Res C §25402.10(d). Additional standards for these regulations were added by Stats 2018, ch 684, §2. See Pub Res C §25402.10(i), cited in §1.40.
The Section 8 programs are currently the primary vehicle for the federal government’s participation in providing low-income housing. Effective March 12, 2018, HUD issued its Interim Final Rule affecting Section 8 programs for Public Housing Agencies (PHAs) and Multifamily Housing (MFH) Owners. 82 Fed Reg 58335 (Dec. 12, 2017). The purpose of the change was to streamline regulatory requirements for PHAs and Owners of MFH. This Interim Final Rule allows the Owners and PHAs, during years 2 and 3 after a full income review, to determine a family’s fixed income using a verified COLA or rate of interest on individual sources of fixed income. See §1.47.
Effective January 1, 2019, CC §1954 permits the landlord to enter the premises to perform an inspection under Health & S C §17973, which requires inspections of the “exterior elevated elements” (e.g., balconies and decks) of all buildings containing three or more dwelling units. With limited exceptions, inspections must be completed by January 1, 2025, and every 6 years thereafter. See CC §1954(a)(6) and Health & S C §17973. See §§1.65, 3.2, 3.11B, 5.17A, 7.60.
The proper termination of a tenancy, even before entry of judgment for possession, also terminates the tenant’s right to continued protection of the covenant of quiet enjoyment. Multani v Knight (2018) 23 CA5th 837, 855 (landlord’s initiation of unlawful detainer action because of tenant’s failure to pay rent terminated tenancy, thereby relieving landlord of any potential liability for subsequent alleged sewage backup). See §§3.5, 3.7.
Any person, business, or other entity that evicts an existing tenant (or increases the rental price for housing for an existing or prospective tenant by more than 10 percent) within a specified period following the proclamation or declaration of an emergency is guilty of a misdemeanor, punishable by imprisonment, a fine, or both. Pen C §396. See §3.66C, 6.29, 10.62A.
Under CC §51.9, a landlord or property manager may be liable to a tenant in a civil action for damages for sexual harassment. Essential elements that the tenant must prove were liberalized by amendments to CC §51.9(a)(1) in 2018. The tenant no longer need prove that he or she was unable “to easily terminate the [landlord-tenant] relationship.” See §3.70A.
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 recently the supreme court held that potential creditors can comply with both statutes without undermining the purpose of either in Conner v First Student, Inc. (2018) 5 C5th 1026. If a landlord seeks only a consumer’s credit records, then the landlord need only comply with CCRAA. But a landlord seeking other information that is obtained by any means must comply with ICRAA. Thus it is more prudent for landlords to comply with both the CCRAA and the ICRAA when ordering investigative reports on rental applicants. See §4.9.
The Fair Employment and Housing Act (FEHA) (Govt C §§12900–12996), which prohibits discrimination on the basis of a tenant’s source of income 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, discussed in §4.15A.
While it has been the long-standing practice of most landlords to prohibit all pets in their rental properties, many property owners now allow tenants to have pets. There is also an expanded use of service animals, and other animals that provide companionship, comfort, and support to those seeking to or already living in rental housing units. Such animals are not considered under the law to be “pets,” and forms are available to assist landlords in sorting out their obligations in the lease and avoiding disputes over disability law compliance. See §4.15B.
Landlords renting to residential or commercial tenants who are engaged in cannabis activity need to be aware that the 2013 Guidance issued by the Department of Justice (DOJ) (initially summarized in §4.44C) was rescinded by the DOJ; the Guidance had relaxed the standards for prosecuting cannabis offenses in states with laws authorizing marijuana cultivation and distribution for medicinal use. Instead the DOJ issued a new memorandum in 2018 that directs federal prosecutors to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community. The memorandum restates that marijuana remains an illegal drug under the Controlled Substances Act. See §4.44C.
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, 2019, as described in §4.47.
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 §§4.50F, 7.62.
Anti-SLAPP Motions. Under CCP §425.16, tenants 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. See §§5.18A, 7.78B.
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 §§5.18C, 12.35.
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 and how much attorney fees would be awarded. See §§5.18A, 5.18D.
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 §§5.18D, 8.109–8.110, 8.124, 12.60.
Mobilehome Park Tenancies. In 2018, the California Department of Housing and Community Development (HCD) amended 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.
Recent interest in “tiny homes,” many of which are on wheels or “skids” for temporary placement or occupancy, has raised questions regarding whether they may be installed or occupied in mobilehome or special occupancy parks. Where, and whether, they may be occupied or placed is addressed in HCD Information Bulletin 2016-01, cited in §6.5.
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.
The chief state program that finances mobilehome parks and rentals was renamed as the Mobilehome Park Rehabilitation and Resident Ownership Program (Health & S C §§50780–50787). The program was amended in 2018 to permit specified owners of mobilehome parks to perform park rehabilitation with program funds under Health & S C §§50784.5–50784.7. See §§6.17, 6.74.
In addition to the form required by CC §798.75.5(b), Govt C §8589.45 requires for any lease entered into on or after July 1, 2018, a disclosure in the lease related to whether the owner has actual knowledge, as defined by that law, that the park property is in a special flood hazard area or an area of potential flooding, and the lease must provide specified additional information. See §§6.26, 6.154.
Effective July 1, 2019, SB 1130 (Stats 2018, ch 896) amended the Senior Citizens Manufactured Home Property Tax Postponement Law (Rev & T C §§20639–20639.13) to establish a procedure for the postponement of property taxes for an owner-occupant senior or disabled person who is the owner of a manufactured home on land owned by a person other than the claimant, such as in a mobilehome park. See §6.152.
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 Eviction Controls and Constitutional Issues. A local ordinance may add a new ground for eviction not found in state law. For example, West Hollywood amended its 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 §§5.14, 7.62.
In Colony Cove Props., LLC v City of Carson (2018) 888 F3d 445, the Ninth Circuit held that the city’s approval of lower rent increases than that requested by the mobilehome park did not constitute a regulatory taking; the denied rent increases were not the functional equivalent of direct appropriation of property. See §§6.16, 7.10–7.11, 7.14, 7.14B.
The Los Angeles Rent Stabilization Ordinance (LARSO) §151.06.D permits a general adjustment rent increase for a unit that has not had a rent increase (other than a capital improvements increase or an increase for additional occupants) for a period of 12 consecutive months. See §7.29.
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 §7.54.
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 will become 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.
West Hollywood 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 §§7.62, 7.64C, 7.68.
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 §7.63.
Likewise, 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 §§7.64, 7.64H.
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 §§7.64C, 7.64E–7.64G, 8.128, 12.38, 12.60.
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 §7.65.
Most ordinances that permit owner occupancy evictions require the owner to hold a minimum percentage interest in the property. Similarly, some ordinances prohibit eviction for an owner or family member to move into the apartment if any owner or designated family member already lives on the property. For newly added examples of this and other restrictions, see §7.65.
Terminating Tenancies and Eviction Actions. 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 §§3.66C, 6.29, 10.62A.
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 §§4.44A, 8.70.
The contact information and disclosures required to be in the rental agreement or lease under CC §1962 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 for failure to disclose contact information was not applicable to landlord who entered into new lease with tenant after acquiring property in foreclosure sale and thus was not successor owner). See §§4.45, 8.49.
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 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. Effective September 1, 2019, however, the 3-day notice period under CCP §1161(2)–(3) will explicitly exclude weekends and other judicial holidays. Consequently, if a landlord serves the notice on a Friday after September 1, 2019, 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.
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, 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, the 5-day period to respond will explicitly exclude weekends and other judicial holidays. See §§5.24A, 10.1, 10.9, 10.23, 10.29, 10.42, 13.2.
By amendment to the Civil Code in 2018, the law now provides a procedure for establishing tenant 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 §§8.9–8.13.
Procedures for defending evictions arising from discrimination on the basis of a tenant’s immigration or citizenship status are in CCP §1161.4, 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 newly added discussion in §8.129, and amended jury instruction in §12.62A.
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 added special nondisclosure requirements. See §§8.27, 8.70, 10.60. See also §§6.14, 6.71.
In an eviction action following foreclosure, the supreme court held that the purchaser at the foreclosure sale must perfect title by recordation of the trustee’s deed before serving the notice to quit on a tenant whose lease was extinguished by the foreclosure. See Dr. Leevil, LLC v Westlake Health Care Ctr. (2018) 6 C5th 474. See §§8.81, 9.37, 10.46, 14.21.
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 one month’s rent (commercial). This value for commercial tenancies was amended, up from $750, in 2018. See §8.162.
If attorney fees are ultimately sought in an action to enforce the settlement agreement, 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 (plaintiff seeking attorney fees incurred in unlawful detainer action as damages in action for breach of ensuing settlement agreement failed to present admissible evidence of fees). See §§9.18A–9.18B, 13.26, 13.29.
Once a motion to quash is denied, the tenant has 5 days to file an answer or a demurrer. It is error to restrict a tenant to filing only an answer. Van Butenschoen v Flaker (2017) 16 CA5th Supp 10. See §§10.17–10.18.
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 §§10.61, 11.31, 11.62, 13.17–13.18, 13.39.
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. F.P. v Monier (2018) 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 §12.65.
The case of McNair v Maxwell & Morgan PC (2018) 893 F3d 680 is instructive on the necessity of court approval for an award of attorney fees as it related to the strict requirements of the federal Fair Debt Practices Act (FDCPA), which applied to the law firm in this case as a debt collector under the Act. See Warning in §13.33A.
Tenant Bankruptcies and Stay Relief to Complete Eviction. 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 United States (In re Filice) (Bankr ED Cal 2018) 580 BR 259. See §14.4A.
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 §14.6.
Although a sanction of contempt should not 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 injunction, a contempt sanction could lie if a subjective belief that the conduct was permitted was misguided or unreasonable. See Ocwen Loan Servicing, LLC v Marino (In re Marino) (BAP 9th Cir 2018) 577 BR 772 (upheld bankruptcy court’s award of $119,000 in damages for emotional distress to debtors resulting from bank’s harassing calls and letters after discharge). See §14.6.
A bankruptcy court has authority to nullify future automatic stays by issuing an “in rem” order to insulate property from the effect of a bankruptcy filing. In re Vazquez (Bankr CD Cal 2017) 580 BR 526 (court terminated automatic stay, including relief that will continue notwithstanding future bankruptcy cases, based on “in rem” relief). See §14.7.
The trustee, a creditor, or the United States trustee may object to a debtor’s Chapter 7 discharge on the grounds set forth in 11 USC §727(a), or request revocation of a discharge on the grounds set forth in 11 USC §727(d). See, e.g., Layng v Sgambati (In re Sgambati) (Bankr ED Wis 2018) 584 BR 865 (based on extensive record regarding debtor’s bad faith, court granted trustee’s motion to deny debtor’s discharge and denied debtor’s motion to dismiss). See §14.15.
If the obligation of a debtor-tenant in Chapter 13 arose postpetition, the automatic stay may not apply to efforts to collect that debt after confirmation of the debtor’s Chapter 13 plan. See In re Gonzales (Bankr D NM 2018) 587 BR 363 (subsequent levy did not change debtor’s entitlement to funds held by trustee on levy date). See §14.16A.
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 §14.39.
An undersecured creditor who timely elects the application of 11 USC §1111(b) is entitled to its postpetition attorney fees as part of its contractual claim. In re Pioneer Carriers, LLC (Bankr SD Tex 2018) 581 BR 809. See §14.51.
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 (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 §14.56.