Eviction Defense Manual
Eviction Defense Manual
Defense
A Practical Guide to
Representing Tenants in San Francisco
2012
Edited By
Cathy Mosbrucker
Mosbrucker & Foran
Philip Morgan
Ora Prochovnick
Carolyn Gold
INTRODUCTION........................................................................................................7
A. General Resources....................................................................................................7
B. Resources for Public Housing Cases .......................................................................7
II. TYPES OF HOUSING ................................................................................................9
A. Rent Controlled Housing .........................................................................................9
B. Subsidized Housing ...............................................................................................10
C. Other Non-Rent Controlled Housing .....................................................................10
III.
FIRST MEETING WITH YOUR CLIENT ...........................................................10
A. General Considerations ..........................................................................................10
B. Overview ................................................................................................................10
C. The Intake Form .....................................................................................................11
D. Deposit of Rent ......................................................................................................11
E. Court Fees and Costs .............................................................................................12
F. Obtaining Case Information from the San Francisco Superior Court ....................12
G. Other Resources .....................................................................................................12
IV.
NOTICES TO QUIT ..............................................................................................13
A. Rent Ordinance Considerations .............................................................................13
1. Just Cause Requirement .................................................................................13
2. Advice Clause ....................................................................................................14
3. Filing Requirements ...........................................................................................14
4. Wrongful Eviction Petitions ..............................................................................15
5. Tenants in Foreclosed Properties .......................................................................15
B. Three-day Notices ..................................................................................................16
1. Non-Payment of Rent.........................................................................................16
a. Possible Defenses...........................................................................................16
i. Breach of the Implied Warranty of Habitability ........................................16
ii. Violation of the Rent Ordinance ................................................................17
iii.
Waiver ....................................................................................................19
iv.
Tender of Rent .......................................................................................19
2. Breach of Covenants ..........................................................................................19
a. Revolving Roommates and Section 6.14 .......................................................19
b. Rent for additional tenants .............................................................................20
c. Obtaining Landlords Consent to Sublet ........................................................20
i. Waiver ........................................................................................................20
ii. Unilateral Changes in Tenancy ..................................................................21
3. Nuisance, Waste and Illegal Use ........................................................................21
C. Sixty Day Notices of Termination of Tenancy ......................................................22
1. Refusal to Renew the Rental Agreement-Section 37.9(a)(5) .............................23
3
B.
C.
D.
E.
F.
VIII.
IX.
A.
B.
Substituted Service.................................................................................................48
Posting and Mailing ...............................................................................................48
Other ......................................................................................................................49
Pre-judgment Claim of Right to Possession ..........................................................49
Extensions of Time to Plead ..................................................................................49
THE COMPLAINT................................................................................................50
MOTIONS WHICH CAN BE FILED PRIOR TO AN ANSWER........................50
Motion Procedure...................................................................................................51
Motion to Quash Service of Summons ..................................................................52
1. Grounds for a Motion to Quash Service of Summons .......................................52
2. Hearing on the Motion to Quash ........................................................................53
3. Checklist for Filing the Motion to Quash ..........................................................53
C. Motions to Strike ...................................................................................................54
1. Grounds for Motions to Strike ...........................................................................54
2. Requirements for a Motion to Strike .................................................................55
3. Checklist for Filing a Motion to Strike ..............................................................55
D. Demurrer ................................................................................................................55
1. Grounds for Demurrer ........................................................................................55
2. Requirements for a Demurrer ............................................................................56
3. Checklist for Filing a Demurrer .........................................................................57
E. The Effect of an Amended Complaint on Demurrers and Motions to Strike ........57
X. THE ANSWER ..........................................................................................................57
A. Judicial Council Form Answer ..............................................................................58
B. Denials ...................................................................................................................58
C. Affirmative Defenses .............................................................................................58
1. 3(a)-Breach of the Implied Warranty of Habitability.........................................58
2. 3(b)-Repair and Deduct ......................................................................................60
3. 3(c)-Attempt to Pay Rent Within the Notice Period ..........................................60
4. 3(d)-Waiver, Estoppel, Change of Notice to Quit .............................................61
5. 3(e)-Retaliation ..................................................................................................61
6. 3(f)-Arbitrary Discrimination.............................................................................62
7. 3(g)-Violation of the Rent Ordinance ................................................................63
8. 3(j)-Other Affirmative Defenses ........................................................................63
D. Security Deposits ...................................................................................................63
E. The Prayer for Relief..............................................................................................64
F. Jury Demand ..........................................................................................................64
G. Amended Answer...................................................................................................64
XI.
DISCOVERY .........................................................................................................65
A. Discovery Cut-Off..................................................................................................66
B. Purpose of Discovery .............................................................................................66
C. Interrogatories ........................................................................................................66
1. Form Interrogatories...........................................................................................66
2. Special Interrogatories .......................................................................................66
D. Demand For Inspection of Documents and Other Tangible Things ......................67
E. Depositions ............................................................................................................67
F. Requests for Admissions........................................................................................67
G. Motions to Compel Discovery ...............................................................................68
XII. MOTIONS FOR SUMMARY JUDGMENT ........................................................68
5
XIII.
A.
B.
C.
I.
INTRODUCTION
This manual was written specifically for attorneys representing low-income San
Francisco tenants. The publication is not intended to be a comprehensive treatise on
landlord/tenant law or practice. Rather, the authors have set forth an overview and general
discussion of the central issues and concepts that will arise in eviction defense under the
San Francisco Rent Stabilization and Arbitration Ordinance. For a more detailed
discussion of particular issues, you should consult the following resources:
A.
General Resources
California Eviction Defense Manual 2ed., by Myron Moskovitz and Bay Area
Legal Aid (May 1998 CEB) (hereinafter, EDM).
California Residential Landlord-Tenant Practice by Myron Moskovitz (1998
CEB) (hereinafter, Moskovitz II).
In addition to applicable statutes, regulations and relevant case law, other helpful
resources include:
1.
The San Francisco Housing Authority operates the Public Housing Program
by way of a policy manual called the Admissions and Continued Occupancy
Policy Manual (ACOP) and the Section 8 program by the Administrative
Plan for the Section 8 Voucher Program. The current version of each of these
manuals should be available for review at the San Francisco Housing
Authority office at 440 Turk Street. ACOP is also available in PDF form from
VLSP.
2.
3.
4.
a.
b.
c.
This Eviction Defense manual is divided into two volumes. Part I is an overview of the
substantive law and procedure. Part II contains sample forms and pleadings. Parts I & II
of the Eviction Defense Manual can be read and printed from
http://www.probono.net/bayarea. Additionally the San Francisco Rent Stabilization and
Arbitration Ordinance (including Rules and Regulations of the Rent Board) can be found
at the SF Rent Board website: http://www.sfgov.org/site/rentboard
Landlord/tenant practice changes constantly. Please contact VLSP if you come across any
errors or omissions. Your input is essential if this publication is to remain useful.
If, after consulting this publication, or other relevant material, you are unable to resolve
or understand a matter satisfactorily, please call one of the attorneys on your expert list
(call VLSP if you no longer have that list). These experts are also available to strategize
with you about your pro bono cases. You can also call Carolyn Gold, VLSP supervising
attorney on the Landlord Tenant Project.
II.
TYPES OF HOUSING
Because of the wide variety of laws that may apply, it is very important at the outset of a
case to determine the type of rental housing involved in your case. The basic types are:
privately owned rental units subject to the San Francisco Residential Rent Stabilization
and Arbitration Ordinance, Ch. 37 of the San Francisco Administrative Code,
(hereinafter, Rent Ordinance); subsidized and public housing, which may or may not be
subject to the Rent Ordinance; and other housing which is exempt from the Rent
Ordinance. The type of housing determines the rights of the parties.
A.
The Rent Ordinance limits the amount by which a landlord may increase the rent.
The limits do not apply when a rental unit becomes vacant and is re-rented. In an
attempt to prevent landlords from evicting tenants from rental units solely to
increase the rent to market rate, the Rent Ordinance also limits evictions to
fourteen just cause reasons. The Rent Ordinance also provides a variety of
technical defenses for tenants facing eviction.
The Rent Ordinance applies to all residential rental units in the City and County of
San Francisco. The exceptions to this general rule are found at Section 37.2(r) of
the Rent Ordinance. The main exceptions are: new housing built after June 13,
1979; residential hotel rooms where the tenant has been in occupancy less than 32
continuous days; and units where the rents are controlled by another government
agency. But Section 8 units, HOPWA units and other certificate-based subsidized
units are covered by the eviction protections and some of the rent limitation
protections of the Rent Ordinance: see discussion at Subsidized Housing, Section VI
below.
Effective January 1, 1999, all single family dwellings and condominium units are
exempt from the rent limitation provisions of the Rent Ordinance, unless:
a)
b)
the tenant in possession of the unit has had an ongoing tenancy dating back
prior to January 1, 1996
the preceding tenancy has been terminated by the landlords service of a
thirty-day notice.
See Costa-Hawkins Rental Housing Act, Civil Code Section 1954.50 - 1954.535.
Costa-Hawkins does not exempt these rental units from the eviction limits of the
Rent Ordinance.
The Rent Ordinance applies to rental units whether or not they comply with
building, health or safety codes or whether there is a valid permit of occupancy.
B.
Subsidized Housing
Most subsidized housing is administered by the San Francisco Housing Authority and
subsidized by a bewildering array of federal programs. A landlords obligations and a
tenants rights vary substantially from program to program. Some subsidized housing
is now covered in part by the Rent Ordinance. For a detailed description of the lease
terms and eviction requirements for the various programs see Sections V and VI
below.
C.
California law governs units that are not subject to rent control. There are no
limits on rents or eviction protections for tenants with periodic tenancies under
state law.
III.
General Considerations
Although the amount of money involved may be small, unlawful detainer (the
technical name for eviction) cases are not always simple. Eviction defense is a
highly technical area and most tenants have great difficulty finding representation
because of dwindling public resources.
Keep in mind that, for a low-income tenant, eviction is devastating. Because the
rental housing market vacancy rate is so low and market rate rents are so high,
low-income tenants who are evicted often either have to leave the City or become
homeless. As an advocate, if you can keep your client in affordable housing you
will have performed an invaluable public service. If that is not possible,
negotiating a settlement that either provides your client with sufficient resources
or the time to gather the resources herself so that she can move into stable housing
will mean that there is one less homeless family on the streets.
Most landlords who file an unlawful detainer action are not interested in the payment of
rent. Rather, they want to obtain possession, because the Rent Ordinance allows
landlords to charge market rate to new tenants. The profit motive may be overcome by
presenting a vigorous defense to the unlawful detainer action. You will want to consider
using pre-trial motions, discovery, a demand for a trial by jury and, possibly, an
affirmative lawsuit to strengthen your bargaining position. Each topic is discussed in a
separate section, below.
B.
Overview
The eviction case starts with a non-judicial procedure, the service of a written
notice to quit. After the notice period expires, the landlord must file an eviction
lawsuit or unlawful detainer action. Unlawful detainer is a statutory cause of
action that gives the plaintiff/landlord special procedural preferences. Because the
10
landlord is receiving special preferences, the courts will strictly enforce the
statutory requirements.
The tenant/defendant must file a response to the unlawful detainer action within
five days of the service of the summons. Once the tenant files an answer, the
landlord can file an at issue memorandum asking the clerk to set a trial date.
The clerk must set the trial within 20 days after the filing of this memorandum.
The affirmative defenses a tenant/defendant may raise are limited, and crosscomplaints are prohibited.
C.
You will be provided with the intake form by the Eviction Defense Collaborative. Be
sure to review it with your client and make sure the information provided is accurate.
You may not need all of the information in the intake for your particular case, but
because unlawful detainer defense is highly technical and the cases move so quickly,
unless you are an experienced practitioner it is better to go through the entire intake
form with your client early in the case. In addition, some VLSP clients do not have
telephones so you will not be able to simply call them up if you find that you need
additional information.
D.
Deposit of Rent
Its a good idea at the first meeting with your client to determine her goals. Does
she want to stay and pay the rent? Would she want to stay if the landlord made
repairs? Or is she willing to move, but just wants some additional time or a
payment from the landlord? Your clients goals will determine your strategy in
defending the case. For example, if your client is unwilling to move, you will
know that it will be difficult to settle the case prior to trial.
Whatever your clients goals may be, it is very important to have your client deposit
the rent in your trust account, or that of VLSP, as the case progresses. VLSP has the
ability to set up a trust account for your client. You can find out more information in
your Handbook for Volunteer Attorneys and Advocates. This way, if you prevail,
your client will be able to stay. If you lose, or your client agrees to move, the client
will have some resources to do so. Do not rely on your client to save the rent.
Many of the clients will not have bank accounts. Their rent probably accounts for
one-half to two-thirds of their monthly income. It is very easy for rent to be spent
on little luxuries, like food, instead of being saved, especially when the tenant
feels mistreated by their landlord. Do not be shy about insisting that the rent be
deposited in trust and be sure to remind your client to continue to deposit the rent as
the case progresses.
Be sure to explain to your client what, if any, the limits of your representation will be.
Explain that you are not charging a fee, but that the client has an obligation to keep in
touch with you and notify you of any changes in their situation. Such items are
contained in VLSPs retainer agreement in your Handbook for Volunteer Attorneys.
11
E.
Each defendant must pay a $225.00-320.00 filing fee with her first appearance.
An additional fee of $40.00 is charged for each motion filed by the defendant.
There is a $500.00 fee for filing a motion for summary judgment. Jury fees of
$150.00 must be posted 5 days before trial. Court reporters are not supplied by
court and parties must hire their own court reporter if they want to make a record.
Transcripts can be covered by the Court Reporter Transcript Fund if client is
income- eligible. This does not include paying reporter for time spent in court.
Additional fees may be incurred for the service of documents and depositions.
Virtually all VLSP clients qualify to have the court filing fees and costs waived.
An application for waiver of fees and an order must be filed with the first
pleading. A request for waiver of additional fees and costs with an order must be
filed with the demand for trial by jury. Generally, when a volunteer takes the case,
the Eviction Defense Collaborative has had the client file both fee waiver forms.
However, if you get the case at the demurrer stage and you are filing the Answer,
the Additional Fee Waiver Request for and Order needs to be filed with the
Answer where you request fee waivers for jury fees and court reporters fees. In
this form you should request waiver of the jury fees and the court reporters fees.
Blank fee waiver forms are included in Part II of this publication. To complete
the fee waiver forms you will need information about your clients income and
their social security number.
VLSP clients also qualify for free depositions. Information about how to handle
such depositions is contained in your Handbook for Volunteer Attorneys and
Advocates.
For additional information see EDM, Vol. I, Ch. 10.
F.
It is important for your client to notify you whenever he or she receives correspondence
from the San Francisco Superior Court or opposing counsel. Hearings and trials
are scheduled on a shortened timeline in unlawful detainer cases, so it is advisable to
track the progress of the case through the court. Unlawful detainer complaints are
shielded from public disclosure for at least 60 days after the complaint has been filed.
Code of Civil Procedure sec. 1161.2, see also section VIII. For that reason case
information is not accessible on the San Francisco Superior courts website, however a
court clerk may allow access to case information if you provide the case number, the
names of one plaintiff and one defendant, and the address of the premises. The best way
to track whether opposing counsel has filed any motions or a Memorandum to Set for
Trial is to call the Court Clerks office at (415) 551-3802. The clerk will ask for the case
identification information and then provide you with information from the Register of
Actions.
G.
Other Resources
12
Section XVIII (page 63) in this manual contains information about the social
services available to your clients. VLSP provides both social services
consultations and volunteers to any client in need. Should you ever have any
questions or want to make a referral to a social services volunteer, please call
Julie Rosenthal, Social Services Director at (415) 865-9210.
Several other resources are also available to you and your clients. Appendix B to
this volume contains an excerpt from the Homeless Advocacy Project Resource
Guide on emergency funds that might be available to your client for payment of
rent, moving costs or utilities. The resources are very limited and most take
several weeks to access. It is probably best for you to contact the agencies listed
on behalf of your client, as social service agencies are more likely to approve the
request where the lawyer is involved. There is also a section in Appendix B from
the Resource Guide on shelters. They are the only emergency housing resources
available for low-income tenants. Other resource sheets addressing housing,
mental health, public benefits, health care, and domestic violence issues are
available on http://www.probono.net/bayarea.
IV.
NOTICES TO QUIT
In almost every situation, it is necessary that a written notice to quit be served and given a
chance to expire before a cause of action for unlawful detainer will exist. Generally, the
notices will either be three, thirty, or sixty days in duration. (Ten and fourteen day
notices, which are allowed in certain public housing situations, are discussed in Section
V, below.)
This section describes the requirements for various notices to quit and offers suggestions
of possible defenses that may apply to a particular type of notice. For a discussion of
other defenses that may be available in your case, see Section X (c), below.
A.
Where the rental unit is subject to the Rent Ordinance, the notice to quit must
comply with a number of substantive and procedural requirements. Special notice
requirements are detailed in sections 37.9(a), (b), (c), (i), 37.9B, and 37.9 C of the
Rent Ordinance and throughout the Rules and Regulations of the Rent Board,
(hereinafter, R&R). The Rent Ordinance and the Rules and Regulations are
frequently amended. The Rent Ordinance and Rules and Regulations can be read
and printed from the Rent Board website http://www.sfgov.org/site/rentboard.
You can also contact the Rent Board at 25 Van Ness Ave., Suite 320, (415) 2524600.
1.
Section 37.9(a) enumerates the fifteen just causes for eviction under the Rent
Ordinance. They are:
13
A landlord or master-tenant who lives in the same rental unit as his sub-tenant
may evict the sub-tenant without just cause. See Rent Ordinance Section
37.9(b). However, for sub-tenants who moved into the unit on or after May 25,
1998, they must have been informed in writing at the commencement of the
tenancy that they could later be evicted by their master tenant without just
cause, or else just cause applies. See R&R 6.15 C (1).
Sale of the rental unit, even sale by foreclosure, is not a ground for
eviction under the Rent Ordinance. Units which have been foreclosed
upon but are exempt from the rent limitations of the ordinance are subject
to the Just Cause provision for 1 year after the foreclosure. See Rent
Ordinance 37.2 and 37.9.
Section 37.2(r) has been amended to require just cause to take back
garages and other housing facilities. The Rent Board has not adopted
Rules regarding these evictions, and the interpretation of this section is up
to each individual trial judge.
2.
Advice Clause
3.
Filing Requirements
The notice or a document served with the notice must state Advice
regarding the notice is available at the San Francisco Residential Rent
Stabilization and Arbitration Board. See Rent Ordinance, Section 37.9(c).
This provision applies to all notices to quit where the rental unit is covered
by the Rent Ordinance.
14
If you are assigned a client at the notice stage (i.e., before the unlawful detainer
is served on your client) of the eviction process, you or your client might be
tempted to file a petition for wrongful eviction at the Rent Board. Dont do it.
(The exception to this rule of thumb is where the notice is for owner-move-in
under Section 37.9(a)(8) of the Rent Ordinance and the tenant is elderly or
disabled as defined in Section 37.(a)(i).) Although it is true that the Rent
Board does have a procedure for lodging a complaint regarding a wrongful
eviction, it is important to examine such a strategy from a real-world
perspective.
First, the Rent Ordinance does not give the Rent Board any real authority
in such cases. Even if you prevail at the Rent Board, its decision has no
binding effect on the Superior Court once an unlawful detainer action is
filed.
Second, you may have a judgment in the unlawful detainer case before the
Rent Board holds a hearing.
Finally, if there is a technical deficiency in the notice, a helpful Rent
Board employee will inform the landlord of the deficiency and your client
will be served with a new and improved notice to quit much earlier than
necessary. In most cases you will want to save such defects for use as a
defense to the unlawful detainer action.
5.
Three-day Notices
Generally, three-day notices are allowed when a landlord seeks to terminate a tenancy
because of bad conduct by the tenant. Code of Civil Procedure Section 1161 allows
for a three-day notice to quit for non-payment of rent; breach of covenants of the
rental agreement including subletting; nuisance; waste; and use of the premises for
an illegal purpose.
In the event that a 3-day notice for non-payment of rent is signed by the attorney
rather than the landlord, there is an argument that such state eviction procedures
are pre-empted by federal law, and that the rent demanded is defective as violative
of the federal Fair Debt Collection Practices Act, 15 U.S.C. Section 1692g.
1.
Non-Payment of Rent
A notice for non-payment of rent must be in the alternative. That is, the notice
must give the tenant the opportunity to pay the rent or quit the premises. The
notice must also state the precise sum due. CCP Section 1161. The notice
cannot demand rent for more than one year prior to the service of the notice. It
should not demand money other than rent. The notice must also state the name,
address and telephone number of the person to whom the rent payment shall be
made. If personal payment of the rent is allowed the days and hours of
availability also must be listed. If personal payment is not allowed the payment is
presumed received upon mailing provided the tenant can show proof of mailing.
The notice to quit can not include guest fees if the unit is a residential hotel. Rent
Ordinance Section 37.9(a)(l). If the client pays the entire amount demanded in
the notice within the 3 days, the landlord cannot file an unlawful detainer
complaint based upon that notice. Of course, the client may not have the money,
or may disagree with the amount the notice seeks. For more information see
EDM Vol. I, pp. 98-108; Friedman & Garcia, pp. 7-20 to 7-44.
a.
Possible Defenses
If you take a case at the notice stage, the following are suggestions for
topics to explore with your client and evidence that you should begin to
collect.
i.
16
Section X(c)(1), below; EDM, Vol. I, Ch. 15; and, Friedman &
Garcia, Ch. 3.
If you take a case at the notice stage where the Rent Ordinance
applies, you should conduct a detailed interview with the client
about her entire history of rent increases. If any of the rent
increases violate the Rent Ordinance, the increase is void and the
amount demanded in the notice to pay rent or quit is incorrect. See
Section 37.3(b)(5) of the Rent Ordinance and R&R Section
4.10(b).
To determine whether the tenants rent has been correctly calculated,
you will need to consider the following: Generally, a landlord may
only increase the rent once a year after the first year anniversary of a
tenants occupancy of the rental unit, and likewise each year thereafter
in accord with the Rent Ordinance. On March 1 of each year, the Rent
Board publishes a percentage figure for the maximum allowable
annual rent increase for the period from March 1 through February 28
(or 29) for the following year. This figure is equal to 60% of the
percentage increase in the Consumer Price Index (CPI) for the
preceding 12 months.
A landlord may impose a rent increase in excess of the annual
allowable CPI increase only in the following circumstances:
increase. (Civil Code 827.) The extra notice period does not apply
if the rent increase is due to a change in family composition or
income level.
iii.
2.
Tender of Rent
If the unlawful detainer action has not yet been filed and your client
has the rent, have her try to pay the landlord even if the notice period
has expired. For more information see EDM Vol. I, pp.112-116.
Breach of Covenants
This section, a part of the state Costa Hawkins Act which preempts local
rent control, provides that landlords may increase rent by any amount to a
subtenant who moved into the unit after January 1, 1996 if the original
tenant no longer resides in the unit. Note that although this provision does
allow landlords to increase the rent to market rate, it does not permit the
holdover subtenant to be evicted absent just cause.
19
b.
R&R Section 6.13 prohibits an extra rent charge for the addition of any
additional occupant, including a newborn child, to an existing tenancy,
regardless of the presence of a rental agreement, which allows for a rent
increase for additional tenants.
For more information see EDM Vol. I, pp. 116-124.
c.
If the rental agreement requires that the tenant obtain the landlords
consent prior to subletting, the tenant cannot be evicted for breach of this
covenant if the landlord has unreasonably withheld this consent. The
withholding of consent to sublet is deemed unreasonable if the tenant has
met all of the following requirements: 1) the tenant requests in writing that
the landlord give permission for subletting before the new roommate
begins occupying the unit; 2) the proposed subtenant is willing to
complete the landlords standard rental application form or otherwise
provide sufficient information to allow a typical background check; 3) the
landlord has been given five business days to process the proposed
roommates application; 4) the proposed subtenant meets the landlords
reasonable application standards; 5) the new roommate is willing to sign
and/or be bound by the current rental agreement affecting the tenancy; 6)
the tenant is replacing a roommate who has departed; and 7) the tenant has
not requested consent to sublet more than one time per roommate in the
preceding twelve months.
d.
Possible Defenses
i.
Waiver
ii.
3.
In these cases, the three-day notice does not have to be in the alternative,
but Section 37.9(a)(3) of the Rent Ordinance requires the landlord to
specifically state the nature of the nuisance in the notice. This provision is
worded in the present tense, so you can argue that the activity must be
presently occurring when the notice is issued to qualify as grounds under
the Rent Ordinance. Code of Civil Procedure 1161(4) provides that
certain drug and weapons offenses committed at the premises are deemed
nuisances.
Often the conduct creating the nuisance did occur, but was the result of
your clients mental health impairment. Federal, state, and local fair
housing law requires that a landlord provide reasonable accommodations
in their rules, practices, policies and services to enable a disabled tenant to
access and retain their housing. The request for a reasonable
accommodation may be made at any state of the tenancy, even during
eviction proceedings.
Early investigation is the key to defending these cases. Start by getting
copies of any police reports or records of criminal proceedings. Also, talk
to your clients neighbors to see if they agree with the landlord. Finally,
carefully question your client about her version of the events and any
criminal record she may have.
21
You may want to write the landlord a letter indicating that, although your
client does not admit that her conduct rose to level of nuisance, she was
unaware that other tenants were being disturbed and that the conduct will
not happen again.
Where the eviction is on the basis of using the rental unit for an illegal
purpose, you can argue that this section was intended to allow evictions
where the illegal activity is the pervasive and primary use of the premises.
Anything less would allow a landlord to evict a tenant for things such as
income tax evasion.
For more information see EDM Vol. I pp. 124-126; and Friedman & Garcia pp.
7-38 to 7-38.6.
C.
Civil Code Section 1946 allows service of a thirty day notice to quit for no reason
whatsoever, absent a rent control law, fixed term lease, or other lease provision.
Lease provisions allowing notice of as little as seven days are valid.
Under Civil Code section 1946.1 landlords are required to give sixty-day eviction
notices in all circumstances where they previously would have given thirty-day
notices. The only exceptions to this extended notice requirement are: (1) if any
tenant had lived in the unit less than one year or (2) the tenant was being evicted
from a single family residence, the notice is being given within 120 days of the
establishment of escrow and the eviction was for the purpose of enabling the
purchaser to move-in. Note that this second exception would not be applicable to
units covered by the Rent Ordinance which require the buyer to serve the ownermove-in notice, not the seller.
Under state law, the requirements of a proper thirty or sixty-day notice are quite
meager. The notice must identify the premises with reasonable specificity, and the
demand for possession must be clear and unequivocal. Curiously, a landlord can serve
both a thirty or sixty-day notice and a three-day notice to pay rent or quit
simultaneously and not violate this requirement. If the tenant fails to pay the rent, the
landlord can either proceed on the three-day notice or wait until the expiration of the
thirty or sixty-day notice and proceed on two causes of action for unlawful detainer.
Another oddity is that there is no legal requirement that a notice terminating
tenancy be signed, or even, in most cases, that it identify the landlord. Often, a
notice will be drafted by an employee of a management company or by the
landlords attorney.
Units covered by the Rent Ordinance have more stringent requirements for thirty
or sixty-day notices. Eviction under Sections 37.9(a)(5), (8), (9), (10), (11), (12),
(14), and (15) of the Rent Ordinance requires service of a thirty or sixty-day notice
of termination of tenancy. Note that eviction under Section 37.9a(13), so-called
Ellis Act evictions, requires 120 days notice; one years notice is mandated if the
tenant is elderly or disabled. A landlord may be able to use a three-day notice to
22
2.
3.
This section allows a landlord to evict a tenant for refusing to execute a written
renewal or extension of the rental agreement, after written demand, under
terms that are materially the same as the previous agreement. A successful
defense will need to show that the terms of the new agreement were not
materially the same as the original agreement.
This section allows a landlord to evict a tenant who has refused him access
as required by state or local law. Civil Code Section 1954 governs
landlord entry into the rental unit, and provides strong tenant protections.
Section 1954 allows the landlord to enter only (1) to make or inspect for
necessary or agreed upon repairs; (2) to show the unit to prospective
tenants, purchasers, contractors, etc.; (3) when the tenant has abandoned or
surrendered the premises; (4) in case of emergency; or (5) pursuant to
court order. Note that the landlord does not have a right to enter to merely
inspect the premises, unless the inspection relates to necessary repairs.
Except in cases of emergency, the landlord is required to give the tenant
24 hours written notice of intent to enter and shall enter only during
normal business hours. The written notice shall be hand-delivered to the
tenant, left at the premises in a visible manner, or mailed to the tenant. If
the notice of intent to enter is mailed, it must be mailed at least six days
prior to the intended entry. However if the landlord is entering in order to
show the unit to prospective purchasers, then oral 24 hours notice is
sufficient, provided that the entry is within 120 days of a previously given
written notice advising the tenant that the property was for sale and that
the landlord or realtor would be contacting the tenant orally to seek access;
at the time of such an entry the landlord must leave written evidence
regarding the entry.
This just cause applies in situations where the original tenant moves out,
and only the unauthorized subtenant remains in the unit. It cannot be used
in cases where a new roommate has not been approved by the landlord, but
an approved tenant still lives there, too. (But this may give rise to a
possible breach of covenant eviction, see discussion at IV. B.2. above.)
Note that the ordinance does not specify that the landlord must have given
23
You may argue that waiver occurs whenever the landlord, having knowledge
of the subtenants presence, accepts rent from the primary tenant. If the
landlord or manager accepts rent from the new occupant directly, then the new
occupant has become a co-tenant, rather than a sub-tenant, and therefore
cannot be evicted under this section.
However, even if the landlord had knowledge of and/or consented to the
presence of the subtenant, this still leaves open the question as to whether
or not said subtenant is an original tenant for rent control purposes. The
answer to this question has become quite complex due to passage of the
Costa-Hawkins Rental Housing Act (Civil Code 1954.50-1954.535),
and the subsequent modification of R & R 6.14 to comply with CostaHawkins. If no original tenant remains in the unit, then the landlord is
permitted to raise the rent to market rate, but this does not allow the
landlord to evict the holdover subtenant if he or she can afford the
increased rent.
An original tenant, also referred to as original occupant under the
revised R & R 6.14, is an individual who took possession of the unit with
the express consent of the landlord at the time the base rent for said unit
was first established; such a person remains rent controlled throughout
their tenancy. If a subsequent occupant (either subtenant or co-tenant)
moved in prior to January 1, 1996 and it can be proven that the landlord
had knowledge of and/or consented to that persons presence in the unit
without serving a notice as provided by R & R 6.14, then that subsequent
occupant is a rent controlled tenant as well.
The thirty or sixty-day notice must parrot the language used in Section
37.9(a)(8) and 37.9B. Additional requirements are imposed by R&R
Sections 12.14. The passage of Proposition G in November 1998 has
greatly expanded tenants defenses in owner move-in (OMI) evictions.
There remains the possibility of constitutional challenges to this
legislation, in light of a subsequent court of appeals ruling. See, Cwynar v.
CCSF (2001) 90 Cal.App.4th 637.
24
The landlord cannot evict for OMI if any comparable vacant unit in any
building owned by the landlord in San Francisco is available or becomes
available prior to the date the tenant vacates the unit. The provision in the
Rent Ordinance regarding a non-comparable unit has been found to be
invalid. Bullard v. San Francisco Residential Rent Stabilization and
Arbitration Board (2003) 106 Cal.App.4th 488. Under Bullard, the
landlord must still offer the tenant the opportunity to rent any vacant noncomparable unit, but is allowed to charge market rent.
Within ten days of service of the notice terminating tenancy, the landlord
must file with the Rent Board and disclose in writing to the tenant the
following information: the names of all owners of the property, each
owners percentage ownership interest and the date of recording of said
interest, the identity of the landlord or relative who will be moving into the
unit, a description of the landlord/relatives current residence, a listing of
all other residential property owned by the landlord (and by the relative),
the current rent paid by the tenant and a statement that the tenant has a
right to re-rent at that same rate should the landlord move out in less than
three years, and notice that the tenant may have rights to relocation
benefits.
Senior citizens and disabled persons who have lived in the unit for 10
years or more cannot be evicted for OMI. Seniors are defined as persons
over the age of 60; disabled means receiving or qualified to receive SSI
by reason of disability. Terminally ill persons who have lived in the unit
for five years or more cannot be evicted for OMI; this refers to persons
who are disabled as above, and also have been diagnosed with a lifethreatening illness. These protections do not apply to tenants who are
being evicted from single-family homes or from a condominium, when the
landlord owns no other condos in the same building. These protections
also do not apply if the landlord is evicting for a relative who is age 60 or
older and every unit in the building is occupied by a long-term senior,
disabled and/or catastrophically ill tenant.
In addition families with school age children cannot be served an OMI
notice which expires during the San Francisco Unified School District
year. Families with children must assert their protected status within 30
days of receipt of the notice.
5.
In the past this cause for eviction has been one of the most often abused by
landlords. It is hoped that these new restrictions will limit the abuse.
Consider exploring the landlords or the relatives lifestyle, which may be
relevant if the building or neighborhood where the tenant lives appears
particularly unsuited to the landlord or relative. Keep in mind that it is the
landlords burden to show that he has complied with all of the notice
requirements, and that he is acting in good faith, with honest intent and
without ulterior reasons in seeking possession of the rental unit.
To evict for condominium conversion, the landlord must have satisfied all
the requirements of the local subdivision ordinance. Briefly, this means
that the following events must have occurred prior to the service of the
notice to quit: (1) recordation of the final map (or the parcel map if the
building has less than five units); (2) issuance of the white slip from the
State Department of Real Estate (for buildings with five or more units); (3)
26
6.
Demolition-Section 37.9(a)(10)
Call City Planning to make sure the landlord really has all the necessary
permits in hand. Check to see if the proposed use complies with the
zoning law. Certain streets (Valencia, 24th St., Union St., and some
others) have been zoned as special use districts, and second floor
apartments on those streets cannot be converted to commercial use without
a special permit. Demolitions also require a permit.
Permits can be challenged by a timely appeal to the Board of Permit Appeals,
and zoning variances are also appealed to that body. Planning Commission
approvals of conditional uses can be appealed to that body, or to the Board of
Supervisors. There are a variety of procedural requirements and deadlines for
such appeals, which are outlined in the San Francisco Planning Code Section
308. The remedies available at the Board of Permit Appeals are often
preferable to defending an unlawful detainer action.
Combining small units into a large one arguably does not qualify as
removal from housing use, as the space will still be used for residential
27
7.
If the landlord is removing an illegal unit from housing use, he still must
obtain permits for the work. Starting in 2007, the landlord also must make
relocation payments to the tenants pursuant to section 37.9 C.
Landlords often abuse this just cause for eviction. Many tenants do not
know they have the right to re-occupy their unit at the same or an adjusted
rent. (Note that the landlords ability to increase the rent for capital
improvements has been greatly reduced by the passage of new legislation,
effective November 7, 2002.) Landlords will often fail to inform tenants
when the work has been completed, or delay so long in doing the work and
notifying the tenant of its completion, that most tenants finally rent
elsewhere. The landlord, of course, then has a decontrolled unit.
Because of this abuse, you should try to keep your client in her home while the
work is being done. You can try to work out a schedule with the landlord,
setting certain days when the plumbing will be turned off, other days for the
electricity, etc., and have the tenant sign the schedule. The tenant should be
fully cooperative with the landlord on this schedule and later, when the work is
all completed, ask for a rent discount. If the landlord refuses to make such a
schedule, insisting that the tenant vacate the unit, send a letter saying that the
tenant will allow full access to do the work.
However, a client might wish to move during renovations if the work may
pose a health hazard. Extensive mold remediation often involves tearing out
mold infested walls or sheetrock, and the cutting, hammering and drilling will
release large quantities of mold spores into the air. Destructive action will
often stir a mold colony into production of dangerous mycotoxins, the source
of toxic mold problems.
You should find out whether the tenant is particularly vulnerable to mold
because of mold allergies, asthma, a compromised immune system, or other
health problems. Lead dust is a particular hazard to very young children
because they will often ingest it into their mouths.
28
A diligent contractor can limit the dispersion of mold spores or lead paint dust
by following an industry protocol from an industrial hygienist. The protocol
will involve sealing work areas and pumping the air out of them (with
negative pressure). But if your client has suffered years of health problems
from years of sloppy repairs of water problems, neither you or the tenant may
have confidence that the landlord will finally get the repair job done right.
(Even if BBI has issued a Notice of Violation, you cannot be sure that the City
inspector is familiar with remediation protocols or will insist that they be
followed.) If you advise the client to move, try to obtain copies of the building
permits, and a written commitment that notice of the right to return should be
provided to the tenants attorney as well as the tenant. Where lead remediation
work is to be done the landlord must give 3 days written notice.
8.
9.
days after the notice has been served on the tenant. However, if the
tenant is either over 62 or is disabled, and has lived in the unit at least
one year, then the withdrawal of the unit from rental use shall be
extended to one year after notice has been served on the tenant.
The tenant must be advised that the unit must first be offered to them
before the landlord may rent or lease the unit to any other persons. The
tenant should therefore keep the landlord apprised of their new address
and future address changes, and should continue to keep track of the status
of the unit for many years. The landlord is liable for punitive damages of
six months rent should he fail to offer the unit to the prior tenants before
re-renting it after a going out of business eviction.
The issue as to whether the defense of discriminatory motive may be still
raised in an Ellis Act eviction. Retaliatory motive is not a defense to an Ellis
action. See, Drouet v. San Francisco Superior Court (2003) 31 Cal. 4th 583.
Tenants who are being evicted based upon the grounds of Section
37.9(a)(13) are entitled to receive payment of certain sums before vacating
the premises. Tenants, regardless of income, are entitled to be paid
$5,105.20 per adult tenant for relocation expenses. If any one tenant is
over the age of 62 or is handicapped as defined in Health & Safety Code
Section 50072, then each such tenant is to be paid an additional $3,403.45.
The maximum payment per household is $15,315.56. As with other
relocation payments, the Ellis payments are linked to the CPI and change
annually in March.
D.
Where there are multiple tenants and/or subtenants, only one of the
tenants need be served with a thirty-day notice of termination of
tenancy. A three-day notice for non-payment of rent or breach of
covenant of the rental agreement must be served on all the tenants and
sub-tenants.
2. Methods of Service
tenant, Code of Civil Procedure Section 1013(a) does not extend the
notice period by five days. See Losornio v. Motta (1998) 67 Cal.App4th
110.
The notice period starts with the day after service and includes weekends
and holidays. If the last day of the notice period falls on a weekend or
holiday, the tenant has until the next business day to comply with the
notice. CCP Section 12a.
For more information see EDM, Vol. I, Ch. 8; and Friedman & Garcia pp. 741 to 7-44.1; 7-46 to 7-47.
E.
One exception to the general rule requiring a written notice to quit with
just cause prior to the commencement of an unlawful detainer action
that you may see is in building manager situations. Where the landlord
lets a building employee live in a rental unit solely as a term of
employment, the employee is not considered a tenant but a mere
licensee. In these cases, once the employment is legally terminated,
the license to live at the premises is automatically terminated and the
landlord/employer can immediately commence an action for unlawful
detainer. See Friedman & Garcia 7-58.1. If the tenancy predated the
employment relationship, normal notice rules apply.
b. Abandonment
Tenant Notices
In a typical rental situation where the tenant pays her rent monthly, she must give
the landlord 30 days notice in writing if she wants to end her tenancy. The tenant
can give notice at any time during the month. She is not required to give it on the
first of the month. Unless the landlord agrees otherwise, the tenant must pay rent
until the end of the thirty-day notice period. If the deposit is designated as
security deposit rather than as last months rent deposit then it cannot be
legally applied to the last months rent unless the landlord agrees.
If the tenant changes her mind and decides not to move, she should notify the
landlord as soon as possible. Under state law, a landlord can file an unlawful
detainer action at the end of the thirty days. Under the Rent Ordinance, it can be
argued that such actions are prohibited because this is not a just cause for eviction.
However San Francisco courts have been following the state law provision that
once terminated by 30 day notice the tenancy cannot be unilaterally reinstated by
the tenant but only with the landlords mutual consent.
V.
PUBLIC HOUSING1
The purpose of public housing is to provide decent, safe, and sanitary housing to lowincome tenants who generally pay 30% of their adjusted income for rent. Public housing
is housing owned and operated by a public housing authority. The local public housing
authority in San Francisco is the San Francisco Housing Authority (SFHA).
The Department of Housing and Urban Development (HUD) is responsible to ensure that
the public housing authority properly operates public housing. An Annual Contributions
Contract entered into by the local housing authority and HUD governs their relationship.
The federal law authorizing public housing is the Housing Act of 1937, 42 U.S.C.A. 1437
et. seq. The state enabling legislation for public housing is Health and Safety Code 34200
et. seq.
This section of your manual provides an overview of issues related to public housing evictions. This is a
complex area of law that cannot be dealt with comprehensively here. If you are referred a pro bono public
housing case, please review this section, then confer with expert attorney Arnold Ellis or Phillip Morgan at
Bay Area Legal Aid, (415) 982-1300.
1
33
A.
The requirements for a public housing lease, as well as the grounds and
procedures for eviction, are set forth at 24 CFR 966.4 (1996).
1.
Lease Obligations
a.
b.
2.
The housing authority can only terminate the lease for serious or repeated
violations of material terms of the lease, such as failure to pay rent or
failure to fulfill tenant obligations set forth in the lease or for other good
cause. 24 CFR 966.4(1)(2). Although good cause is not defined, it does
serve to limit the housing authoritys ability to evict for arbitrary, or
improper reasons.
Because a public housing tenant has a property right in the continued
occupancy of his dwelling unit, an advocate must be careful to assure the
34
forfeiture of that right is never out of proportion to the reason for the
forfeiture. The term of the lease violated must be a material term. Even
where the grounds for eviction is criminal activity, the housing authority
has discretion to permit all or some of the family to remain in the dwelling
unit after considering all the circumstances, such as the seriousness of the
offense, the extent of participation by family members and the effect
eviction will have on family members. 24 CFR 966.4(1)(5)(I).
Early in 2001, 9th Circuit Court of Appeals, sitting en banc, ruled in the
case of Rucker v. Davis,2 that the one-strike statute could not be
interpreted to permit the eviction of innocent tenants. The majority
concluded that tenants could not be evicted for the conduct of others over
whom they have no control nor knowledge of the conduct. In a heated
dissent, the minority claimed the statute permitted the eviction of tenants
who neither knew of nor were able to control the conduct giving rise to the
eviction. Instead of characterizing these tenants as innocent tenants, the
dissent labeled them ignorant tenants.
The parties on the losing side in the en banc Rucker decision filed
petitions for writ of certiorari with the United States Supreme Court. On
March 22, 2002, the U.S. Supreme Court reversed the judgment of the 9th
Circuit of Appeals.3 The Supreme Court held that under a statutorily
required lease provision, a public housing authority can evict an entire
household if any member of the household, or any guest, or any other
person under the control of a household member, engages in drug-related
or certain other criminal activity, regardless of whether other members of
the household were involved in or knew of the criminal activity, and
regardless of where that activity took place.
35
3.
Notice of Termination
To evict a public housing tenant, the housing authority must first serve her
with a notice of termination. The notice must be written and it can be a 30day, 14-day or some other duration less than 30 days depending on the reasons
for the eviction. For non-payment of rent, 14 days is required. A reasonable
time not to exceed 30 days is required where the health and safety of other
residents or housing authority employees is threatened. The San Francisco
Housing Authority usually serves a 3-day notice to quit in those
circumstances. Thirty days is mandated in any other case. 24 CFR 966.4(1)(3).
The notice of termination must state the specific grounds for the
termination. It must also inform the tenant of her right to reply to the
notice, as well as her right to inspect housing authority documents relevant
to the termination or eviction. If the housing authority is required to afford
the tenant a grievance hearing, then the notice must inform the tenant of
her right to request a hearing. Even if the housing authority is not required
to provide an opportunity for a grievance hearing, the notice must inform
the tenant of that fact, state that HUD has determined the judicial
procedures for the eviction contain the basic elements of due process and
state whether the eviction is for drug-related activity or other activity.
36
Grievance Procedure
The regulations for the grievance procedures and requirement are at 24 CFR
966.50 et. seq. Grievance procedures should assure a tenant the opportunity for
an administrative hearing if she has a dispute with the housing authority in
matters involving the lease or the housing authoritys regulations that affect
her individual tenant rights, duties, welfare or status.
Termination of tenancy or eviction that involves either (criminal) activity
that threatens the health, safety or peaceful enjoyment of others or drugrelated criminal activity can be excluded from the grievance procedure.
timely grievance hearing is requested the tenancy does not terminate until
the grievance process has been completed.
5.
Once the decision is rendered by the grievance hearing officer or panel, the
housing authority, except in very limited circumstances, is required to take
all actions, or refrain from any action, necessary to carry out the decision.
If the decision is to uphold termination of the lease, it is unclear whether
the housing authority must serve another termination notice before filing
the unlawful detainer complaint.
Independent of any discovery rights a tenant litigant has, applicable federal law
requires the SFHA in all instances to inform the tenant of the right to examine
all SFHA documents directly relevant to the termination of tenancy or eviction
before any hearing or trial. Failure to allow the tenant to review the
documents is an affirmative defense. (A sample of how to raise the defense is
included in Appendix C-2).
VI.
The One Strike and Youre Out policy also applies to certain other federally subsidized
housing although the language of the governing law is slightly different. Unlike in public
housing where the drug related or criminal activity can occur on or off the premises, for
Section 8 tenant based housing the activity must occur on or near the premises.
Because Section 8 voucher holders often have a difficult time finding landlords willing
to enter into Section 8 contracts, California has enacted a law to ameliorate this problem.
Landlords who terminate or fail to renew Section 8 contracts must give tenants a 90-day
notice of termination. The law also precludes landlords from increasing the tenant
portion of the rent during the 90-day period. California Civil Code Section 1954.535. A
landlord cannot terminate the Housing Assistance Payments Contract (HAP) without
terminating the lease. Wasatch Property Management vs Degrate (2005) 35 Cal 4th 111
at 1121,1122. . Federal law governing the Housing Choice voucher program does not
preempt local rent control ordinances. See Barrientos vs 1801-1825 Morton (9th Cir..
2009) 583 F.3d 1197 at pages 1213, 1214. It follows, then that if the rental unit is
covered by San Franciscos Rent Ordinance, then the landlord cannot terminate the
tenancy absent good cause. (comment: this is a developing position of the Rent
Board).
Recent amendments to the Californias Fair Employment and Housing Act (FEHA) have
also helped increase access to affordable housing for low-income Section 8 tenants and
prospective tenants. In addition, the FEHA also prohibits landlords from using financial
or income standards in accessing eligibility for the rental of housing that is not based on
the portion of the rent to be paid by the tenant. Landlords, therefore, cannot deny
housing to a Section 8 tenant or prospective tenant because her household income is not
some multiple of the total rent for the unit.
38
An Advocate working with a client who is being evicted from a subsidized unit or a
client, who has a Section 8 voucher, should contact Bay Area Legal Aid or the Expert
Attorney list for advice.
There are numerous housing programs subsidized by the federal government other than
public housing. Some of the more prominent ones providing housing for low-income
tenants are the Section 221(d)(3), Section 236, Section 202 and various Section 8
programs.
A.
The eviction regulations for Sections 221(d)(3) and 236 housing programs
are found at 24 CFR 247. The grounds for termination of tenancy are:
a. Material noncompliance with the rental agreement
b. Material failure to carry out obligations under a state
landlord and tenant act
c. Other good cause.
2.
In addition, the HUD Handbook 4350.3 and the model lease prescribed by
HUD impose additional notice requirements. The notice must inform the
39
tenant of the right to discuss the proposed termination with the owner of
landlord and provide at least ten (10) days for requesting a meeting to do
so.
The notice of termination must be served by first class mail and either:
a. Personally serving it on any adult at the dwelling unit or
b. If option a not possible, leaving the notice inside the
dwelling unit or affixing it to the door.
In the unlawful detainer action the landlord generally must rely on the
grounds which were set forth in the termination notice. A tenant can rely
on state or local law where such law provides procedural rights in addition
to those provided by 24 CFR 247.
B.
Caveat: In order to keep the rents affordable, many Section 221(d)(3), 236 and
202 housing developments also receive additional Section 8 subsidies. Where this
is the case, the housing may also be subject to the regulations governing the
particular Section 8 program providing the subsidy.
C.
Section 8 Housing
The Section 8 housing program was created in 1974. It is the primary program of
the federal government for providing affordable housing to low-income families.
There are different types of Section 8 housing programs and they are governed by
different and distinct regulations.
In each of the Section 8 programs, the tenant pays about 30% or so of the
household income in rent. HUD pays the rest of the rent to the landlord. The
40
types of Section 8 assistance can either be tenant based or project based. Project
based Section 8 is tied to a particular building, whereas tenant based Section 8
is tied to the tenant. A tenant moving from a project based assisted unit cannot
take the assistance to her new unit. A tenant with a tenant based Section 8 can
move the assistance to a new unit. Many of the Section 221(d)(3), Section 236,
Section 202 housing programs previously discussed have in addition, Section 8
rent subsidies tied to the apartment complex that are Project Based Section 8.
1.
2.
D.
Besides the Section 8 Existing Housing program there are other Section 8
Housing programs. These programs are unique to particular buildings; if a
tenant moves out, that person no longer has a rental subsidy. The subsidy
only applies to the tenants who live in those buildings. The leases and
regulations for these programs vary.2 For example, the termination notices
for Section 8 New Construction and Substantial Rehabilitation must
advise the tenant of his right to respond to the landlord. It is therefore very
important to know which Section 8 program is involved when assisting a
Section 8 tenant. This can be difficult; if you are unable to determine
which program you are dealing with, call Phillip Morgan, John Carella or
Arnold Ellis at Bay Area Legal Aid at 415/982-1300.
2.
Tax Credits
This state agency, the primary purpose of which is to meet the housing
needs of low and moderate-income persons, also receives federal monies
for subsidizing housing. Housing financed by a mortgage from the agency
is required, among other things, to meet certain standards for admission of
tenants, termination of tenancies and grievance procedure. Each of these
programs requires good cause to terminate a tenancy. See: California
Health and Safety Code, Sections 51050 et seq. See also and California
Code of Regulations, Title 25, Sections, 7860, et seq., 25 California Code
of Regulations Section 8301, 25 California Code of Regulations 11401 et
seq.
There are other housing programs that are funded by federal and state tax
credits. Federal and state tax credits are made available to private
investors to encourage them to help finance the development of affordable
rental housing. Rental housing financed with tax credits are required to
remain affordable for a set number of years and rented to households
below certain income levels.6 In California the federal and state tax credit
Section 8 New Construction (24 CFR 880.607); Section 8 Substantial Rehabilitation (24 CFR
881.1049(c); Section 8 Moderate Rehabilitation (24 CFR 882.511); Section 8 Sate Housing Agencies (24
CFR 883.105(c) and 883.701); and Section 8 Special Allocation (24 CFR 886.128 and 886.328). In
addition, State Housing Finance Agency housing programs can be project-based Section 8 and state law
may also apply, like Cal. Health & Safety Code Sections 51050 et seq. and Cal. Code of Regulations, Title
25, Article 4, Sections 11401 et seq.
2
Many low-income family households need additional rental subsidies in order to afford units financed with
tax credits as the rents for the tax credit units are often above 30% of the households income.
6
42
E.
The San Francisco Rent Ordinance was recently amended to include rental
units formerly excluded because the rents were controlled or regulated by a
governmental entity. This amendment to the Rent Ordinance now subjects
units with tenant based rental assistance, including Section 8 vouchers and
HOPWA rental assistance, to its provisions relating to rent increases
(Section 37.3a(10)), determination of base rent (Section 37.2(a)) and the
good cause grounds for eviction (Section 37.9(g)).
Other provisions of the Ordinance would not be applicable. For example,
petitions for decrease in services or capital improvement pass-alongs do
43
The amendment covers only those rental units not within other exclusions
from the definition of a rental unit (Section 37.2 (r)). (For example,
newer rental units where construction was completed after June 1979
would still be excluded.)
2.
Termination of tenancy where Rent Ordinance does not apply (Civil Code
1954.535) recognizes the difficulty that Section 8 voucher tenants and
other tenant based rental assistance participants have in finding private
landlords to participate in the programs. Landlords who wish to opt out
of any governmental agency program that limits tenants rent including
Section 8 contracts with the Housing Authority, are now required to give
the tenant at least a 90 day notice of the effective date of the termination of
the contract. During the 90-day period, the landlord is prohibited from
raising the tenants portion of the rent.
If the unit is not covered by the Rent Ordinance (because, for example, it
was built after 1979) then the following rules apply. (Please note, these
rules only apply if the unit is NOT subject to the Rent Ordinance.)
The grounds for termination of tenancy are found at 24 CFR 982.310. The
lease can only be terminated for the following reasons:
a.
b.
c.
i.
ii.
44
rent control. However, the tenant then will face paying the full
amount of the rent as set by the Rent Ordinance.
3.
Notice of Termination
If the unit is subject to the Rent Ordinance, then the notice requirements of
the Ordinance must be met. In addition, even if the unit is not subject to
the Rent Ordinance, the notice of termination must specify the grounds for
the termination. The length of the notice period is determined by state law.
24 CFR 982.455(b)(3). The owner and tenant are required to provide a
copy of the notice of termination to the housing authority.
A 90 day notice is required by state law for tenants with government funded
rental assistance, such as Section 8, where the landlord wants to terminate or
not renew his contract with the governmental entity that provides for rent
limitations, such as the Housing Authority. During the 90-day notice period,
the tenants rent is frozen. California Civil Code Section 1954.535.
4.
Lease Provisions
Although the housing authority is not a party to the lease between the
owner and the tenant, the lease must be approved by the housing authority.
The lease is required to contain certain provisions and is prohibited from
containing others. 24 CFR 982.308. The lease is also contingent upon the
landlord and housing authority entering into a HAP contract.
45
F.
G.
46
assistance of the offender while allowing the victim, who is a tenant or lawful
occupant, to remain.9
The SFHA and Section 8 landlords are required to inform their tenants of these
new rights and the tenant leases must include this information.
H.
I.
Eviction Defenses
Federal law and regulations do not in most instances preempt protections of state and
local law for public housing tenants or federally subsidized housing tenants. San
Francisco has chosen to no longer exclude rental units because of any tenant based
rental assistance (e.g., Section 8 Certificates, Section 8 vouchers) from San
Franciscos Rent Ordinance. Project based Section 8 tenancies (e.g., 202, 221(d)(3),
236 housing) are still excluded from protection of the Rent Ordinance. In defending
an eviction from any federally subsidized housing the tenant can rely on federal,
statutory, regulatory and case law, and state law. If the Rent Ordinance applies, in
addition the tenant can rely on its protections.
J.
47
The summons may be served by any of the methods described below. The summons may be
served by any person over 18 years of age who is not a named party to the action. CCP Section
414.10. A complete copy of the complaint must be served with the summons.
If the defendant fails to file a timely response to the summons, the plaintiff may request
that default be entered. Once default is entered the only issue before the court is the
amount of the judgment to be entered for plaintiff. The proof of service of the summons
need not be filed with the court until the plaintiff requests entry of default.
For more information see EDM, Vol. I, pp. 199-208; Moskovitz II, pp. 717-725; and
Friedman & Garcia pp. 8-38 to 8-47.
A.
Personal Service
Code of Civil Procedure Section 415.10 authorizes service of the summons and
complaint by personal delivery. If the defendant refuses service, it is sufficient for the
process server to place the documents near the person to be served. Failure to enter
the date of the service on the copy of the summons that is served does not invalidate
the service.
B.
Substituted Service
Code of Civil Procedure Section 415.45 authorizes service of the summons and
complaint by posting and mailing. Before using this method of service, the plaintiff
must apply to the court for an order. The application must include a declaration
48
stating that service could not be achieved with reasonable diligence by any other
method. The summons must be posted at the premises and a copy of the summons
and complaint mailed by certified mail to the defendant. Service is deemed complete
10 days after the posting and mailing, and so the response is due 15 days after the
posting and mailing.
D.
Other
The occupant should file the pre-judgment claim form if he has defenses which
are separate and distinct from those of the named defendants, or the named
defendants cannot be relied upon to defend against the lawsuit, or it is likely the
plaintiff will learn the occupants name during the course of the lawsuit.
For more information about service see EDM, Vol. II, pp. 530-537; and Friedman
& Garcia pp. 8-47 to 8-55.
F.
The defendant may make an ex parte application to the court for an extension of
time to plead. Although Code of Civil Procedure Section 1167.5 authorizes
extensions of time of up to 10 days, the practice of the current law and motion
judges is to grant extensions of only 2-5 days.
The attorney for the plaintiff can grant the defendant an informal extension of time
to plead. Many will do so only if the defendant agrees to file an answer. The
49
extension is seldom worth giving up the right to file a pre-trial motion, unless you
have already determined from a review of the file that no such motions are
available. If you do reach an agreement with plaintiffs counsel for an extension be
sure to send a letter confirming the agreement and specifying that the extension was
to respond (and not only to answer).
Pursuant to CCP 1166, the plaintiff must attach certain documents to the complaint.
The required attachments include a copy of the notice of termination of tenancy and a
copy of any written rental agreement. The written rental agreement need not be
attached as an exhibit if the action is based on nonpayment of rent.
The filing of the unlawful detainer complaint is shielded from public disclosure. If
the case is resolved in the defendants favor within 60 days of filing, the record is
permanently sealed. Code of Civil Procedure 1161.2.
This is a very basic description of the elements of the cause of action. For more
information see Moskovitz II, pp. 695-715; and Friedman & Garcia, pp. 8-8 to 8-59.
IX.
A significant percentage of unlawful detainer litigation consists of law and motion practice.
Many eviction cases are resolved via motions rather than through litigation or settlement.
Certainly, the filing of frivolous motions must be avoided; it can damage an attorneys
reputation with opposition counsel and the court, and subject counsel to the imposition
of sanctions. On the other hand, a well-considered and properly drafted motion can
achieve one or more of many worthy goals. These goals include preserving your
50
clients due process rights, properly honing the pleadings, narrowing the issues that are
before the court, fostering judicial economy by bringing matters to final resolution
without the necessity of trial, and slowing down the proceedings so as to allow
sufficient time to propound discovery, explore settlement and allow the clients to
garner sufficient time and money to preserve their housing. Code of Civil Procedure
Section 92, limiting the types of motions which may be filed in Courts of Limited
Jurisdiction does not apply to unlawful detainer actions.
A.
Motion Procedure
All motions described in this manual follow essentially the same process and
require similar paperwork. Each requires a notice of motion, which informs the
court and the adverse party of the date, time and place of the hearing on the
motion, as well as a brief description of the issues to be addressed. Rules of court
require that a memorandum of points and authorities support every motion.
Where appropriate, declarations under penalty of perjury in support of the motion
should also be submitted (e.g., when filing a motion for summary judgment,
motion to vacate default, motion to quash or motion to compel). A motion for
summary judgment should have a separate statement of undisputed facts as well,
although this is officially no longer required in unlawful detainer actions [CRC
3.1350(c)&(e)]. A proposed pleading must accompany a motion to vacate default.
A proof of service must be filed along with any notice of motion, indicating the
time and manner of service on the opposition.
In San Francisco, unlawful detainer law and motion, including discovery motions,
is heard Monday through Friday at 9:30 a.m. in Department 501. The moving
party may set the matter for hearing without first clearing the date with a calendar
clerk. Ex parte applications are heard in Department 501 at 11:00 a.m., Monday
through Friday; twenty-five hours telephone notice must be given to opposing
counsel before 10:00 a.m. on the day before the hearing on the application. Note
that only applications for stays of execution and related applications for orders
shortening time on motions to vacate default will be heard on Tuesdays and
applications for stays will be heard only on Tuesdays at 11:00 a.m. All other ex
parte applications must be brought on Monday or Wednesday through Friday.
There is a $40.00 filing fee charged for every motion or application, except a
motion for summary judgment, which has a $200.00 filing fee. An application for
fee waiver should be filed with the first responsive pleading for any tenant who is
eligible to proceed in forma pauperis. See Section III(e), above. If EDC filed the
first responsive pleading they will have filed the fee waiver. However, if the first
paper filed by EDC was anything other than an Answer, it is your responsibility to
file the Request for Additional Fee Waiver form along with the Order. This form
gets the jury fees waived.
San Francisco local rules of court set out the mandatory procedure for complying
with the courts tentative ruling system. The day before a matter is set for hearing,
beginning at about 3:00 p.m., tentative rulings for the next mornings calendar
become available. The court uses a voice mail system that can be accessed by
dialing (415) 551-4000 and then pressing 1. After that, each party can hear the
51
tentative ruling on their motion by entering the court case number. The tape will
then state that the motion has been granted, denied, or that a hearing is required.
If a tentative ruling is not yet available, the introductory message will repeat and
you will have to call back later. Tentative rulings are available online as well, at
http://www.sfsuperiorcourt.org/index.aspx?page=467. Click on the Department
(UD Law and Motion 501 or UC Discovery 501), then enter the six-digit case
number and click on the search button. If the tentative ruling is against you and
you wish to appear and argue you must call the adverse party and inform them of
this intent. Plaintiffs counsel must do likewise. Anyone who fails to comply
with the tentative ruling system will not be permitted to speak at the hearing.
B.
For more information see EDM, Vol. I, pp. 208-228; Moskovitz II pp. 759-769;
and Friedman & Garcia pp. 8-60 to 8-66.
1.
The law on proper service is set out in Code of Civil Procedure Sections
415.10 et. seq.
A motion to quash may also be granted when the complaint fails to state a
cause of action in unlawful detainer, and instead contains causes of action
or claims for damages not permitted in unlawful detainer actions. In such
an event, the five-day summons is inappropriate and such defective
summons will not confer jurisdiction of the court over the defendant. This
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2.
3.
____ Notice of Motion to Quash with a hearing date set for three to seven
days from filing in the Law and Motion Department, San Francisco
Superior Court, Court of Limited Jurisdiction, Room 301 (odd
numbered cases) or Room 302 (even numbered cases), 400
McAllister Street, San Francisco
____ Memorandum of Points and Authorities
____ Declaration of Defendant Describing the Attempted Service
____ Proof of Service (if by mail, set the hearing for seven days from
filing)
____ Fee Waiver Application and Order
____ File the motion in Room 103 at 400 McAllister Street, between
8:00 a.m. and 4:00 p.m. Monday through Friday.
Place a courtesy copy of the motion in the box outside the
courtroom on the third floor (either Department 301 or 302).
____ Call or check the court website for the tentative ruling the day prior
to the hearing
____ Notify plaintiffs attorney if the motion is denied and you
plan to appear and argue.
____ Calendar time for filing next responsive pleading, either five days
after the motion is denied or five days after any new service.
53
C.
Motions to Strike
Code of Civil Procedure Sections 435 and 436 permit a party to move to strike the
whole or part of a pleading that contains false, irrelevant or improper matter. In
an unlawful detainer action a motion to strike is the appropriate attack on an
improper request for relief, as well as an improper allegation in the body of the
complaint or an invalid verification. The grounds for the motion must appear on
the face of the complaint. For more information see EDM, Vol. I, pp. 283-289;
Moskovitz II, pp. 782-788; and Friedman & Garcia, pp. 8-93 to 8-97.
1.
The complaint has a prayer for attorney fees that is not supported
by a written rental agreement which provides for such;
The complaint demands that the court award statutory penalty
damages of $600 without sufficiently alleging specific acts of
malice to support such an award;
The complaint seeks forfeiture of the lease without alleging a
proper request for forfeiture in the notice to quit;
The complaint seeks to recover rent, rather than per diem damages,
in any unlawful detainer action other than one based on a three-day
notice for nonpayment of rent;
The complaint demands rent for a period of time after expiration of
the notice terminating tenancy; or
The complaint seeks any other damages, which are not incidental
to the tenants holdover, such as alleged property damage.
The tenant may also move to strike the entire complaint based on the
grounds of improper verification. Code of Civil Procedure Section 1166
expressly requires parties to unlawful detainer actions to verify the complaint
and the answer. Counsel for the tenant should check for misdated
verifications, corporate plaintiffs (the complaint must be verified by a
corporate officer), attorney verifications (allowed only if the party is out of the
county where the attorneys office is located), and any other non-plaintiff
verifications (permitted only under certain special conditions and these special
reasons must be stated in the verifying affidavit). Code of Civil Procedure
Section 446 sets forth the requirements for a verification signed by a person
other than a party.
54
2.
3.
D.
Demurrer
1.
same cause of action. The court must direct its ruling on a demurrer to the
face of the pleading, and no extrinsic evidence may be considered. It also
should be kept in mind that due to the summary nature of the proceeding, the
unlawful detainer statutes are very strictly construed. There is extensive case
law regarding the doctrine of strict construction that might be cited in the
memorandum of points and authorities in support of a demurrer.
A demurrer for failure to state a cause of action will lie if any element of
the prima facie case is lacking. Depending on the exact context, attorney
for tenant may consider a demurrer for:
2.
Like the motion to strike, a demurrer must be filed within the five days of
service of summons and complaint, service of an amended complaint, or a
ruling denying a motion to quash. It is filed in lieu of an answer. The
hearing on the demurrer should be set sixteen court days from the day the
papers are filed and served; five days should be added if the notice is
served by mail. CCP Section 1005. It should be noted that some plaintiffs
counsel may go in on ex parte application to have the time for hearing
shortened, and the date of the hearing advanced. The Law and Motion
Departments readily grant such requests.
If the demurrer is sustained, plaintiff is generally granted ten days leave to
amend. In certain limited circumstances, the defect cannot be cured by
amendment, and in these instances the demurrer will be sustained without
leave to amend. If the demurrer is overruled, the tenant has five days from
service of the written notice of entry of an order overruling the demurrer
to file an answer.
For more information see EDM, Vol. I, Ch 13, Moskovitz II, pp. 770-780;
and, Friedman & Garcia, pp. 8-74 to 8.92.
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3.
E.
____ Notice of Demurrer with a hearing date set for sixteen court days
plus five days for mailing from filing in the Law and Motion
Department, San Francisco Superior Court, Court of Limited
Jurisdiction, Room 301 (odd numbered cases) or Room 302 (even
numbered cases), 400 McAllister Street, San Francisco
____ Memorandum of Points and Authorities
____ Proof of Service (by mail)
____ Fee Waiver Application and Order if not previously filed
____ File the motion in Room 103 at 400 McAllister Street, between 8:00
a.m. and 4:00 p.m., Monday through Friday.
Place a courtesy copy of the motion in the box outside the
courtroom on the third floor (either Department 301 or 302).
____ Call or check the Court website for the tentative ruling the day prior
to the hearing
____ Notify plaintiffs attorney if the motion is denied and you plan to
appear and argue
____ Calendar time for filing next responsive pleading five days after the
motion is denied or an amended complaint is served.
X.
THE ANSWER
Once an answer is filed in an unlawful detainer action, the case is at issue. At this point,
a trial will be set within twenty days of the filing of a memorandum to set for trial (also
known as an at issue memorandum).
The answer must be verified. CCP Section 431.30. The defendant must state whether or
not an unlawful detainer assistant for compensation gave advice or assisted in the
preparation of the answer. B&P Code Sections 6400-6415. A copy of the answer must be
served on the plaintiffs attorney or the plaintiff in pro per by personal service or by mail.
CCP Section 1010, et. seq.
For more information see EDM, Vol. I, Ch. 14; Moskovitz II pp. 791-811; and
57
Pursuant to Code of Civil Procedure Section 425.12, the judicial council has
developed and approved an official form answer for unlawful detainer actions
(last revision, January 1, 2007). Use of the official form answer is not mandatory,
but is recommended. The following discussion assumes that you will use the
form answer.
The form is intended to be in non-technical language, and it is self-explanatory
and understandable. However, the tenant must make a factual statement, even if it
is limited to one sentence that supports each affirmative defense checked-off on
the form.
B.
Denials
When the amount in controversy is less than $1,000.00 the tenant may make a
general denial by checking box 2a on the form answer. This puts all of the
allegations of the complaint at issue. The amount in controversy is determined by
Plaintiffs request for past due rent and daily damages.
If the amount in controversy is greater than $1,000.00 the answer must contain
specific denials of the allegations of the complaint. To deny an allegation of the
complaint the defendant must list the allegation by paragraph number under either
Paragraph 2(b)(1) of the form answer if the allegation is false or 2(b)(2) if the
defendant lacks information and belief as to the truth of the allegation. It is not
necessary to explain why the defendant is denying a particular paragraph. It is
also unnecessary to list the various sub-parts of the paragraphs.
C.
Affirmative Defenses
Tenant did not pay rent and the unit has serious repair problems;
Landlord or manager knew or should have known about the
problems but did not fix them in a reasonable amount of time, or
still has not fixed them;
Tenants family or guests did not cause the problems; AND
Tenant did not stop the landlord or manager from fixing the
problems.
The statutory basis for breach of the warranty of habitability are set forth
in Civil Code Section 1941, et. seq. Civil Code Section 1941.1 provides
that a dwelling is un-tenantable if it substantially lacks effective weather
protection, proper plumbing or gas facilities, proper hot water and
sewerage facilities, proper lighting and wiring, clean premises, adequate
garbage facilities, and floors, stairways and railings in good repair.
Civil Code Section 1942.4 provides that it will be rebuttably presumed
that a landlord has breached the warranty of habitability if all these four
conditions are satisfied:
1. The dwelling lacks any of the standards set forth in Civil Code
Section 1941.1;
2. The local housing inspection agency has notified the landlord to
abate or repair a substandard condition;
3. The conditions continue to exist without good cause for at least 35
days after the notice was issued; and
4. The condition was not the fault of the tenant.
Under this section a landlord may not demand or collect rent or issue a
notice to quit if the above standards are met.
59
Absent the presumption of Civil Code Section 1941.1, the tenant can
prove the breach of the warranty of habitability as long as the tenant can
establish that she properly withheld rent, that substantial defects existed
and that the landlord or his agent knew or should have known of the
conditions and failed to make repairs immediately after he knew or should
have known.
Code of Civil Procedure Section 1174.2 provides that where a defense of
breach of the implied warranty of habitability is pled and proved, the trier
of fact must determine the reasonable rental value of the premises
considering the breach. The defendant must then pay that amount within
five days or judgment for possession and rent will be entered for the
plaintiff. If the payment is made, Section 1174.2 also allows the court to
retain jurisdiction over the case until repairs are made.
3.
If the tenant tenders the full amount of the rent due during the period of the
notice, and the landlord refuses to accept the rent, then the tenant can raise
this as a defense to the unlawful detainer.
A tender of rent that was refused prior to the service of the notice to pay rent or
quit has no legal consequence. If the landlord holds a check sent by mail
during the three-day period, then there is a presumption the landlord accepted
it. EDC Assocs, Ltd. v. Guitierrez (1984) 153 Cal. App.3d 167. If the tender
was made by check, then the tenant will need to show that there were
sufficient funds in the account to cover the check.
60
4.
The timeliness of a tender of rent may depend upon the day of the week
the notice to pay rent or quit was served. For example, where the last day
of the notice period falls on a weekend or holiday, the tenant has until the
next business day to pay the rent. CCP Section 12a.
5.
Finally, Civil Code Section 1945 provides that where a tenant remains in
possession and the landlord accepts rent, the parties are presumed to have
renewed the tenancy on the same terms. This presumption may support a
waiver defense or provide a separate defense.
3(e)-Retaliation
There are three bases for a defense of retaliation: common law; Civil Code
Section 1942.5; and Section 37.9(d) of the Rent Ordinance. The common
law defense is available in all cases. The Rent Ordinance defense is
available in all cases where the premises are subject to the Rent
Ordinance. The Civil Code Section 1942.5 defense is not available in
cases involving a notice to pay rent or quit.
Under common law, a tenant may assert a valid defense of retaliation if, on
balance, the public policies furthered by protecting the tenant outweigh the
states interest in ensuring that unlawful detainer proceedings remain
summary. See Barela v. Superior Court (1981) 30 Cal.App.3d 244.
Civil Code Section 1942.5 protects the tenant from retaliation for 180 days
after an exercise of his rights. Section 1942.5 also allows a suit for
damages when the provision is breached.
The Rent Ordinance Section 37.9(d) provides that where the landlords
dominant motive in endeavoring to recover possession is in retaliation for
the tenants assertion of rights under any law, the retaliation shall be a
defense to eviction. Proof of the tenants exercise of rights under the law
within the preceding 6 months prior creates a rebuttable presumption of
retaliation.
6.
3(f)-Arbitrary Discrimination
62
7.
This defense is available in all cases involving a rental unit subject to the Rent
Ordinance.
This defense is applicable if the landlord lacks a just cause to evict; serves
a notice which does not comply with the requirements of the Rent
Ordinance; is evicting in retaliation for the exercise of rights under the
Rent Ordinance; or, seeks to evict for non-payment of rent which was
raised in violation of local rent controls; or is engaging in acts of
harassment in violation of Section 37.10B of the Ordinance.
8.
If the rental unit is covered by the Rent Ordinance, then the landlord must
have a just cause under the ordinance to legally evict a tenant, even if
the tenant does not have a lease. The just cause stated in the notice to quit
must be the landlords dominant motive for seeking possession. See
Section 37.9(c) of the Rent Ordinance. Many of the just causes also have
a good faith requirement. See the discussion of the fourteen just causes
and possible defenses to each in Section IV, above.
Also, in every contract in California, the covenant of good faith and fair
dealing is implied so that each party to a rental agreement covenants not
act so as to prevent the other party from performing his duties under the
contract. For example, a landlord cannot hide himself to avoid allowing a
tenant to tender the rent and then seek terminate the tenancy.
For a discussion of special defenses available to Public Housing tenants
see Section V, above.
D.
Security Deposits
The judicial council form answer previously provided a place for defendant to request
credit for any security deposit. This provision has been omitted from the form
presently in use. However, it is still a good idea to include a request for credit for the
security deposit if only to provide a reminder to the parties to provide for this in any
63
Where it is alleged that the landlord breached the implied warranty of habitability,
then the tenant can ask the court to retain jurisdiction over the parties and enter an
order requiring that repairs necessary to make the premises habitable are made and
reduce the rent until the substandard conditions are abated.
Where the defendant is represented by an attorney and there is a written rental
agreement that provides for attorney fees, then the defendant should ask for
attorney fees in the prayer.
F.
Jury Demand
Either party to an action for unlawful detainer may demand a trial by jury. As a
practical matter, the plaintiff will never make such a demand, whereas the defendant
will almost always demand a trial by jury. This is because of judicial attitudes towards
tenants, time considerations, and the availability of a mandatory settlement conference.
In San Francisco, if no demand is made, the trial is set for 7-10 days from the filing of
the memorandum to set for trial. If there is a demand for a trial by jury on file, the trial
is set for 20 days from the filing of the memorandum. When a jury trial is demanded,
a mandatory settlement conference is scheduled for the Wednesday or Thursday in the
week prior to the Monday of the trial. The jury fees must be waived or posted at least 5
days prior to the trial.
In order to guarantee that a separate settlement conference is scheduled, it is essential
to file the jury demand at the same time as the answer. When a jury demand is filed,
the defendant may also file an application for waiver of additional fees. This form
allows the defendant to request that the jury fees and court reporter fees will be
waived.
G.
Amended Answer
Often a VLSP (or other pro bono program) attorney is assigned a case where the
answer has already been filed. In such cases be sure to examine the answer carefully
to make sure that all appropriate affirmative defenses have been raised and that the
allegations of the complaint have been denied. Despite the policy allowing for liberal
amendments stated in the Code of Civil Procedure, most trial judges will not allow
evidence to be introduced at trial in support of defenses that were not raised in the
answer.
64
An amended answer may be filed as a matter of right within 10 days of filing the
answer. CCP Section 430.40. After that, it is necessary to make a noticed motion
for leave to amend. Such a motion consists of a notice, a memorandum of points
and authorities and a declaration by counsel detailing the proposed amendment
and why it is necessary.
The hearing date must be set at least sixteen court days after the date of filing. If
the trial date is already set you will need to apply for an ex parte order shortening
time for the notice of motion. See Section VIII(A), above. For a detailed
discussion of amendment procedures see, Weil & Brown, California Practice
Guide: Civil Procedure Before Trial (Rutter Group) Ch. 6 and Friedman & Garcia,
pp. 8-102 to 8-103.
XI.
DISCOVERY
The extensions of time provided for in CCP Section 1013a apply to the service of
discovery. Whenever possible, discovery should be personally served via messenger
service. Litigants outside of the area should be served by express mail or facsimile when
appropriate, adding only two days to the time to respond. CCP Section 1013(c). Service
by fax requires a written agreement from opposing counsel.
Some attorneys prefer to enter into a stipulated schedule for discovery responses. The
stipulation can provide for an even shorter response time to discovery requests. The tenants
interest in full discovery can therefore be met, as well as the landlords interest in getting to
trial quickly, since no continuances due to uncompleted discovery will be necessary.
65
A.
Discovery Cut-Off
Discovery cut-off in unlawful detainer actions is five days before the trial date unless the
court grants, or the parties stipulate to, an extension. This means that a defendant will
often be required to serve the last round of discovery shortly after receiving notice of the
trial date. It is therefore crucial that a discovery plan be formulated and acted upon
quickly.
Motions concerning discovery are not subject to the cut-off and may be heard up
until trial. Friedman & Garcia p. 8-150. Prompt service of discovery will ensure
that time to bring a motion to compel will be available and that good cause for a
continuance of trial to hear such motions will be found.
B.
Purpose of Discovery
Because the just cause required to evict under the Rent Ordinance is often only
within the mind of the landlord, discovery is essential in ascertaining the validity
of the claimed grounds for termination and the existence of any other un-just
cause the landlord may have for seeking possession. Discovery can also be used
to uncover facts in support of a tenants affirmative defenses, or to support claims
regarding the daily rental value of the premises or the amounts of any security
deposit the landlord may hold. Furthermore, aggressive propounding of discovery
can put a landlord on immediate notice that the case will be fully defended, and
may promote an early settlement of the case. One more justification for
immediate service of discovery (interrogatories and document requests) is so that
responses will be received in time to review them in order to formulate deposition
questions.
C.
Interrogatories
1.
Form Interrogatories
2.
Special Interrogatories
66
Depositions
Depositions are often the most useful discovery. Answers tend to be more
spontaneous, and unexpected responses can be followed up with further
questioning. It may be your only time to size up the plaintiffs demeanor and
credibility as a witness. Five days notice is required. Non-parties must be
subpoenaed and paid a witness and mileage fee. CCP Section 2020.020 et seq.
67
G.
A motion for summary judgment might also be granted where it is found that the plaintiff
has failed to comply with the applicable requirements of the Rent Ordinance. This might
apply in cases where there is no just cause for the eviction; there has been insufficient
notice to the tenant of the alleged just cause; the basis for an alleged nuisance is not stated
with sufficient specificity in the notice to quit; the notice in support of an owner move-in
68
eviction did not provide the requisite details; or, the tenants are not informed in the notice
to quit that they can seek advice from the Rent Board regarding the eviction.
Section 1170.7 of the Code of Civil Procedure provides that in an unlawful detainer
proceeding a motion for summary judgment may be made at any time after the answer is
filed, and may be set for hearing a minimum of five days from the date the papers are
filed and served (plus the added five days if the notice is served by mailIf the party
opposing the motion intends
to file a written opposition later than noon on the court day before the
motion, the party must so advise the appropriate department of the Court
by noon on that day and must otherwise comply with the requirements of
CRC 3.1351(c). If the party opposing the motion intends to make the
opposition orally at the hearing, then, no later than noon on the court day
before the hearing, the party must so notify the Court by a telephone call
to the clerk in the appropriate department and also so notify the opposing
party. The Court will tentatively grant a motion for summary
judgment/adjudication as unopposed unless the party has given the notice
to the Court required in the preceding two sentences. Parties planning to
proceed under CRC 3.1351(b) must also comply with CRC 3.1306,
including its requirement that evidence be in written form absent a
contrary Court order. Local Rule 8.7. Lawyers representing tenants should be alert to the
fact that plaintiffs counsel might also bring a motion for summary judgment on only five
days notice, and be prepared to file a sufficient opposition to at least establish a question
of fact that should be left to the trial court.
For more information see EDM, Vol, II, Ch. 22: Moskovitz II, pp. 855-863; and Friedman
& Garcia, pp. 8-170 to 8-176.
Whenever a trial by jury is filed with the court prior to the assignment of a trial
date, a mandatory settlement conference will be scheduled. The conferences are
set on the Wednesday or Thursday preceding the trial. Settlement conferences are
held at 1:30 p.m. in Room 501. It is essential that you and your client arrive
promptly, if not before, 1:30 p.m.
Settlement conferences are assigned to judges pro tem and court commissioners.
The judges pro tem are volunteer attorneys, many of whom are landlord attorneys.
Local rules require both sides to bring their CACI jury instructions to the
settlement conference, however, no one asks for them and a VLSP supervising
attorney will always have CACI instructions if needed. The parties must attend
with their attorney. Although attendance at the conference is mandatory,
settlement is not.
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B.
Strategic Considerations
Before you can attempt to settle a case you must determine your clients
objectives and evaluate the merits of your case.
To determine your clients objective, it is necessary to speak with her about what
she wants out of the litigation. Some clients come to you with a hard-line position
(Ill never move), or unrealistic expectations (I want to stay and the landlord
should pay me). Others just want a little extra time to move. Because your
clients goals will influence the way you litigate the case, it is important to have
this discussion with your client at the onset of your representation.
To evaluate the case, first do a factual analysis, i.e., what is your clients chance of
prevailing at trial given the facts of your particular case, bearing in mind that the
jury will be about 50% tenants. (CAVEAT: tenants do not always side with
tenants, so do not rely on this percentage alone for your basis in believing you will
prevail at trial.) Second, evaluate your opponent, both the landlord and his
attorney. Your client will probably have a great deal of insight into the landlords
motives and personality. Check with one or more of the VLSP expert attorneys to
get an idea about the opposing counsel. If the landlord doesnt want to spend a lot
of money, he may be more inclined towards settlement to avoid the expense of
trial. Remember, one advantage you have, as a pro bono attorney is that your
client will not need to take the cost of trial into consideration when evaluating
settlement offers. However, if there is an attorney fees clause in the lease, you
must advise your client of this risk if she loses at trial. Make sure the other side
knows you are a volunteer so they will realize this, too.
Another advantage you have is that your client is probably judgment proof (has no
assets subject to creditor attachment). Thus, the biggest downside of losing the
trial will be having to move within 2-3 weeks of the trial.
It is your job to explain to your client the pros and cons of settlement. Before
making a settlement offer, it is important to know your clients bottom line
position.
Give yourself plenty of room to negotiate. If at all possible, never make the first
offer and never offer to have your client move out until the plaintiff has suggested
it first.
C.
Types of Settlement
The basic issue in all types of settlements is who gets possession of the rental unit.
Usually, the party who gets possession pays: if the tenant stays, he pays rent; if the
landlord gets possession, he pays the tenant through cash and/or waiver of rent.
Other issues are the form of agreement, the disposition of the deposits, the costs of
the suit, whether a release will be given, and attorney fees.
1.
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Payment Plan. If the tenant wants to stay, but cannot pay all of the back
rent immediately, a payment plan is a possibility. Be sure your client can
afford any payments being proposed. Such settlements are more common
in public/subsidized housing situations than where there is a private
landlord.
2.
3.
Pay and Stay. If the tenant wants to stay and has the rent, you should
negotiate to pay a portion of the back rent. The amount will depend on the
strength of the habitability defense. If the tenant wants repairs be sure to
specify in the agreement what the repairs are and when they must be
completed. It is a good idea to include a penalty clause if the repairs are
not completed. For example, the full rent would not be due unless the
repair is made by a specified date. Try to keep the plan as short term as
possible, but dont make payments too high that the tenant will fail.
Tenant-Caused Evictions
Landlord-Initiated Evictions
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If there is strong evidence that the landlord is acting in bad faith, these
cases can settle in the range of $8,000.00 to $90,000.00. Unless the
payment is very large you should avoid including a general release in the
settlement agreement. This is especially true in cases involving owner
move-ins. You should try to retain your clients right to sue for wrongful
eviction should the owner fail to move-in and make the premises his
principal place of residence for at lease 36 continuous months.
D.
Most landlord lawyers will insist that the settlement be in the form of a stipulation
for entry of judgment. This will allow the plaintiff to have judgment for
possession and damages entered if the defendant fails to comply with the terms of
the agreement. That is why it is so important for your client to be realistic about
any payments, time deadlines or behavior changes she promises to make.
You can protect your client from a sudden eviction for violations of the agreement
in a number of ways. First, build in grace periods for any payments required of
your client. Second, insist that judgment can only be entered after 48-72 hour
notice to you, followed by an application to the court supported by declaration
under penalty of perjury. Finally, if at all possible, enter into a settlement
agreement which does not provide the landlord with judgment if the agreement is
breached.
If the plaintiffs attorney insists on a judgment, which is conditionally stayed by
the terms of the agreement, make sure that the judgment will be vacated, and a
dismissal filed, once your client has fulfilled her obligations under the agreement.
This will not entirely clean up your clients credit, but it will help.
Your client should not agree to pay the plaintiffs costs or attorney fees unless she
is remaining in possession and did not have strong defenses. Sample settlement
agreements are included in Part II of this manual that is on
www.probono.net/bayarea.
Do not hesitate to contact a VLSP expert attorney for advice on the value of your
case and the reasonableness of settlement offers. For more information see
Friedman & Garcia, pp. 8-158 to 8-168.1.
XIV. TRIAL
A.
Deciding whether to try the case in front of a judge or a jury is one of the most
difficult decisions you will make. Luckily (if you made a timely demand for a
trial by jury) you do not have to make this decision until the morning of the trial.
Despite the fact that a trial by jury will require more preparation and time in court,
you probably should not waive the jury. Most of the judges in San Francisco will
not enter judgment for the defendant in an unlawful detainer action under any
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circumstances. Unless you have a very narrow legal issue for the court to decide
and the judge who is assigned to the trial has a good reputation among other
tenant lawyers, you will not want to waive the jury. Of course, a judge is not
assigned to the case until the morning of trial.
The jury trial in a simple unlawful detainer action will last 2-3 days. The morning
of trial you must present a preliminary set of jury instructions, voir dire, and any
written or oral motions in limine you want the court to consider.
Plaintiffs attorneys rely heavily on motions in limine. In cases involving nonpayment of rent, you can expect a motion in limine arguing that all evidence of the
breach of implied warranty of habitability should be excluded because the plaintiff
did not have notice of the defects or because the defense was not properly pled. In
cases involving a defense based upon the Rent Ordinance, you can expect a
motion in limine by plaintiff seeking to shift the burden of proof regarding the
plaintiffs dominant motive or good faith from the plaintiff to the defendant.
Another likely motion in limine is one to exclude evidence of other property
owned by the plaintiff.
You should prepare motions in limine to exclude any evidence of bad conduct by
your client that is unrelated to the ground for eviction stated in the notice to quit.
There is a sample motion in limine in Part II of the manual.
You will not need your witnesses the morning of trial. The earliest they could
possibly be needed is the morning of the second day. If any of your witnesses
refuse to appear voluntarily, they must be subpoenaed. The subpoena must be
served at least 24 hours prior to the trial by someone who is over the age of 18 and
not a party to the lawsuit. If the witness requests, you must pay them a $35.00
witness fee when the subpoena is served.
The trial is set in Room 501 at 400 McAllister Street at 9:00 a.m. This is the
housing judges department and he does not hold trials. His job is to try to settle
as many cases as possible. If a case cannot be settled, he assigns the case to
another judge for trial. Code of Civil Procedure Section 170.6 allows each party
to exercise one peremptory challenge per case to the trial judge. Check with VLSP
supervising attorney about peremptory challenges.
The trial judge will make one last effort to settle the case. You may decide for
strategic purposes not to engage in these discussions with the trial judge. He will
also hear any motions in limine before calling for a jury.
If the parties agree, the case can be heard by 8 jurors, otherwise the jury will
consist of 12 people. Dont agree to this request if made by the trial judge. Most
judges will conduct the voir dire themselves. The attorneys for each side are then
given a limited amount of time to question the jurors before making challenges.
With a 12-person jury, each side will have 6 peremptory challenges plus an
additional challenge for each alternative juror selected.
After the jury is selected the trial begins. This manual is not intended as a treatise
on how to conduct a trial. Suffice it to say you will need to prepare an opening
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Checklist
The following checklist was originally designed for use by in pro per defendants.
As you prepare for trial, check off each item you have completed. You should put
your trial materials in a folder(s) or a large binder so you will have it all in one
place on the day of trial.
__Rent Receipts
__Photographs
__Building Inspection Reports
__Rental Agreement
__Correspondence with the Landlord
__Serve subpoenas (if necessary)
__Motions in Limine
__Jury Instructions
__Voir Dire
__Opening Statement
__Cross-examination of the Landlord
__Cross-examination of the building manager
__Direct examination of the Tenant
__Direct examinations for each defense witness
__Closing Statement
Stay of Execution
A stay of execution may be sought after an adverse decision at trial. The trial
court may grant a stay without the consent of the adverse party for a period of up
to ten days beyond the last date on which the notice of appeal could be filed,
whether or not such a notice is actually filed. CCP Section 918. The trial court
may also issue a stay pending appeal, but Code of Civil Procedure Section 917.4
expressly requires the posting of an undertaking, which many unlawful detainer
defendants will be unable to provide. Although there is authority for waiver of
undertaking requirement for indigence, trial judges rarely issue stays pending
appeal in unlawful detainer actions in any event, and almost never without
requiring an undertaking. A stay can also be sought from the appellate department
of the Superior Court. Again, absent compelling circumstances, a stay is unlikely
to be granted in an unlawful detainer action.
The court is most likely to issue a stay of execution where the judgment results
from the tenants default, rather than a judgment entered pursuant to stipulation or
after an adverse decision at trial. It is the policy of the Court to grant one one74
week stay, on condition that the tenant is able to post one-weeks rent with the
court. The payment must be made by cash, cashiers check or money order. In
order to obtain a stay of execution for more than one week, upon a second request,
or following a judgment pursuant to stipulation, a strong showing of exigent
circumstances will need to be made to convince the court.
Ex parte applications for stays of execution are heard by the Housing Court on
Tuesday mornings at 11:00 a.m. in Room 501. You must give the adverse party
notice of the hearing at least twenty-four hours before the hearing, and in any case
no later than 10 a.m. on the day prior to the hearing.
If the stay is granted, a file endorsed copy of the order staying execution, along
with the receipt evidencing payment of rent into court, must be delivered to the
sheriffs office by 5:00 p.m. on the Tuesday preceding the day the eviction was
originally scheduled.
For more information see EDM. Vol. II, pp. 632-639; Moskovitz II, pp. 10021008.1 and Friedman & Garcia, pp. 9-108.5 to 9-108.7.
B.
Tenants may obtain relief from forfeiture of the tenancy and retain possession of
their home if certain conditions are met as set forth in Code of Civil Procedure
Section 1174, or upon a showing of hardship. CCP Section 1179. These motions
can be helpful settlement tools if you have a client with all the back rent but the
landlord will not accept it. Generally, relief should be granted if the defendant can
show that forfeiture will cause the tenant extreme hardship, allowing the tenant to
retain possession will not prejudice the landlord, and the tenant can make the
plaintiff whole by paying all back rent due, and sometimes attorney fees as well.
These motions may be made on 5 days notice and can be heard up until the day
the sheriff evicts. It is often a good settlement strategy to set a petition for relief
from forfeiture to be heard the day after the settlement conference. You may also
make this motion after you lose a trial if the tenant has all the money and the
notice to vacate included a request for forfeiture of the lease. For more
information see Moskovitz II, pp. 1011-1015; and Friedman & Garcia, pp. 9108.8 to 9-112. The tenant may make an oral motion for relief from forfeiture
upon ex parte notice if they are in pro per. CCP Section 1179.
C.
Counsel must file and serve a notice of intention to move for new trial within
fifteen days of entry of judgment. CCP Section 659. Within ten days after filing
this notice of intention, the full motion, including a memorandum of points and
authorities and any supporting declarations, must be filed and served. The motion
will be heard by the judge who presided at the trial, not by the law and motion
judge. Bringing this motion extends the time for filing a notice of appeal.
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For more information see EDM, Vol. II, pp. 643-650; and Friedman & Garcia, pp. 9108.7.
D.
If there is a written rental agreement between the parties which provides for
payment of attorney fees to the prevailing party in the event of litigation, then
counsel should file a motion to be declared the prevailing party and for an award
of fees. This motion may be filed after the sustaining of a demurrer without leave
to amend, the granting of a motion for summary judgment, or a favorable decision
following trial. There is currently a split in authority on the issue of whether
attorney fees can be recovered following plaintiffs voluntary dismissal of the
action.
For more information see EDM, Vol. II, pp. 618-628.2.
E.
The prevailing party must file and serve a memorandum of costs within ten days
of the entry of judgment. CCP Section 1033. Any objections to the matters
asserted in the cost memo must be raised by a timely motion to tax costs.
For more information see EDM, Vol. II, pp. 616-618.
F.
Due to the very short five-day response time in unlawful detainer actions, it is not easy for
a low-income tenant who is not experienced with the legal system to avoid default. The
five days, which include weekends, is not very much time for tenants to try to understand
the import of the papers served on them, garner their resources, locate affordable legal
assistance, and file timely papers with the court. Should the tenant fail and a default be
entered, no responsive pleading can be filed until the default has been vacated. At this
point you should anticipate that the landlord would proceed very rapidly to obtain a
clerks judgment for possession, seek issuance of a writ or execution and schedule the
sheriffs eviction.
In San Francisco, the sheriffs department only evicts tenants on Wednesdays. This is
preceded by the sheriff posting and mailing a copy of the writ of execution and the sheriffs
notice of eviction. In San Francisco, the posting generally takes place on Tuesdays and
Thursdays. This means it can take a week and a half to two weeks from the date judgment for
possession is entered to the date of eviction by the sheriff, depending on timing.
There are three main categories of motions to vacate default. First, the motion may be
filed, where the default was the result of the tenants mistake, inadvertence, surprise or
excusable neglect. CCP Section 473. The motion might succeed, for example, where:
The tenant was monolingual Vietnamese and did not understand the legal papers
(instructions on the summons are in English and Spanish only);
The tenant was very ill or hospitalized at the time of service or immediately
thereafter and has medical documentation to support this;
The tenants miscalculated the time to respond because they did not understand
that the five days included the weekend; or
The tenants wrote a letter to their landlord or landlords attorney and paid all the
back rent and did not understand that this was not sufficient response to service of
the summons and complaint.
Note that, where the default results from an attorneys neglect, as verified by the
attorneys declaration under penalty of perjury, the court must vacate the default and can
impose reasonable costs on the attorney.
A motion to vacate default should also be granted where the defendant can prove that the
judgment is void because the tenant was not lawfully served with the summons and complaint.
See Sections VI (A),(B) & (C) above for a more detailed discussion of service requirements.
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Finally, Code of Civil Procedure Section 473.5 provides that a default should be set aside
where the defendant had no actual notice of the pending action, despite valid service,
through no inexcusable neglect of the defendant. This may occur where the tenant was
legally served by posting and mailing, or by valid substitute service, but nonetheless
never received the papers (because his housemate concealed them, or due to a provable
problem with receipt of mail, etc.)
Motions to vacate default, like most civil motions, must be set for hearing sixteen court
days after filing and service of the notice of motion (plus five days if served by mail). In
most cases, it will be necessary to make an ex parte application for an order shortening
time to notice motion, to ensure that the motion to vacate default can be heard prior to the
tenant being evicted by the sheriff. An ex parte application for stay of execution should
be made at the same time, if the tenant has already been served with a sheriffs eviction
notice. Code of Civil Procedure 473 also requires that the tenant submit a proposed
pleading with the motion.
For more information see EDM, Vol. II, pp. 650-653; Moskovitz II, pp. 956-967; and
Friedman & Garcia, pp. 8-179 to 8-204.8.
Our evaluation of each case must include an assessment of whether or not the
tenant has a potential or actual claim against the landlord. It is part of our
obligation to our clients. As stated above, it helps to develop affirmative
defenses, strengthens our settlement positions, and, if feasible, gives rise to a
lawsuit against the landlord designed to compensate the tenant. Referrals are
available to tenant bar attorneys who may pursue these kinds of cases on a
contingency fee basis. Defenses to eviction are sometimes done on this basis, as
well, especially if there is a rental agreement providing for attorney fees. 3
C.
Before making a referral or entering into any fee agreement with your client, please contact a VLSP
Supervising Attorney at (415) 982-1600.
3
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Under Rent Ordinance Section 37.9(f) the landlord is liable for 3 times actual damages
and attorney fees. Treble damages and fees are available for even technical violations of
the law. This cause of action has been limited by Action Apartment Association v.
City of Santa Monica, (2007) 41 Cal. 4th 1232. Please consult with an expert
attorney if Action issues are raised in your cases. As a general rule such claims are
no longer allowed where an unlawful detainer action was actually filed.
Retaliatory Eviction - Not only is retaliation a defense to an eviction, but it
provides a basis for affirmative recovery. Civil Code Section 1942.5 proscribes
evictions where the landlords purpose is to retaliate against the tenant for
exercising his or her rights. Section 1942.5(a) prohibits retaliation within 180
days of the tenants exercise of repair and deduct rights, complaining to
governmental agencies, or obtaining an adjudication regarding tenantability of
their unit. Section 1942.5(c) prohibits retaliation for exercise of any rights under
law. Under Section 1942.5(f) the tenant is entitled to actual damages, statutory
damages of $100 to $2,000 and attorney fees. In addition, there are common law
rights against retaliation. Glaser v. Meyers (1982) 137 Cal.App.3d 770.
Utility Shut-Off - Civil Code Section 789.3(a) prohibits a landlord from turning
off utilities for the purpose of causing the tenant to involuntarily vacate. Section
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789.3(c) provides for actual damages, statutory damages of up to $100 per day or
each day of violation, and attorney fees.
Excessive Rent Increase - If the landlord has charged more rent than the Rent
Ordinance allows, the tenant is entitled to return of the overcharge. Be sure to
review the rental history. If the landlord has overcharged rent, you may raise the
overcharge as a defense to the unlawful detainer if it is based on nonpayment of
rent. If the eviction is not based on nonpayment, these overcharges may be
recovered via the Rent Board, Small Claims Court, or as part of the settlement of
the unlawful detainer.
Shared Utilities - If the tenant shares a utility meter with the landlord, another
tenant, or a common area of the building, and pays for the utility service, then the
provisions of Civil Code Section 1940.9 apply. If the required disclosure
provisions are not met, then the tenant may raise the overcharge as a defense to a
nonpayment of rent case, and/or may bring an independent action in Small Claims
Court.
Interest on Security Deposit - San Francisco Administrative Code Chapter 49,
requires a landlord to pay interest on the security deposit each year. This amount
changes every year. For the year 3/07 2/08 the amount is 5.2% simple interest.
The tenant may either deduct the cost from rent or sue in Small Claims Court.
Diminution of Services - If the landlord has reduced services to the unit (including
maintenance) or has not provided services to the required level (e.g., inadequate
heat), the tenant may raise this issue with the Rent Board.
attorneys on mold cases often question the causal link between mold problems
and medical manages. Defense attorneys cannot credibly content that molds never
cause allergies, nor easily challenge the science that links certain
molds to respiratory problems. But less research has been done on other types of
medical damage, and a number of defense attorneys have won in limine motions
to exclude all evidence of cognitive damage. Be sure to confer with a mold expert
to gauge the rough probability that an experts testimony about your clients
medical damages would be allowed into evidence in a personal injury suit. (For
more on Kelly-Frye standards on scientific evidence and expert testimony, see
People v Kelly (1976) 17 C3d 25; People v Rowland (1992) 4 C4th 238, People v
Leahy (1994), 8 CA 4th 587. People v Venegas 1998, 18 C4th 47.)
A suit for personal injury from mold usually succeeds only after a hard-fought
battle, with thousands spent on expert witnesses, environmental tests and medical
tests. After a week on an eviction case, you wont be able to precisely measure
the damages that would emerge from this battle. But you should ask enough
questions to determine if it makes sense to invest time and/or money in evaluating
a mold problem.
Does the apartment contain large areas of visible mold that rapidly return after
clean-up efforts? Are there discolored carpets or musty odors (produced by
volatile organic compounds)? Has one or more tenants developed significant new
respiratory, digestive or cognitive problems after mold proliferated? Even if
visible mold is not extensive, ask whether such medical problems developed after
a significant water problem (such as a broken pipe that was not quickly repaired)?
Water problems may spur mold growth out of sight, behind wall or above ceilings.
Medical evaluations of mold will require a specialist in allergy and immunology.
Allergists can use blood tests or scratch tests to check for standard (IGE) allergic
reactions to mold. Some allergists also try to measure exposure with other tests.
If you want results back before the end of the case, urge your client to move
rapidly to set up the earliest possible appointment.
If youve found many warnings signs of mold, you could invest in inspections or
environmental testing within the limits of your budget. A building inspector,
(either a City inspector or a private inspector) can notice mold and possibly cite
specific plumbing or leakage defects that created water problems. An
environmental inspector may be able to visually identify molds for a few hundred
dollars more, possibly identify problem sites with a moisture meter, and take a
quick tape or bulk sample of a visible mold growth. Tape tests or bulk tests can
identify the species of mold growing on a particular spot on furniture, a wall or a
ceiling, but provide limited information on the magnitude of the problem. Dust
tests can give you an idea of the quantity of mold spores that collect over time.
Development of a personal physical injury case will require air testing pumping
air through a device that traps mold spores on a mold plate to measure spore
density in the air. Air testing may require several thousand dollars.
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Mold plates will be taken to the environmental lab. For litigation, youre
particularly interested in molds that thrive on water damaged building materials.
Air tests will compare samples of outside air with the air from specific rooms
within the apartment. If the concentration of target molds in the rooms is many
times higher than the concentration of molds in the outside sample, youve
identified a problem.
Although the tenant may be unable to afford air testing or even find a lawyer to
help defray these costs, a tenant planning to leave a moldy unit should be
informed that air tests before departure are one prerequisite for pursuing a mold
physical injury case. The tenant should not be left with the misimpression that
they can move to a new unit before conducting tests and later be in a strong
position to pursue a physical injury case. The decision on whether to conduct the
air tests needed for a personal injury claim should be made before a departure in
order to measure the extent of the problem during the tenancy. The time window
for testing may be short, even if the statute of limitations would not prevent the
filing of a case for two years.
D.
may apply. (By the way, it is generally considered better practice not
to state what the applicable statute is, only that one applies and that the
client may seek legal advice elsewhere about this issue).
As part of VLSPs philosophy of holistic advocacy, we understand that a clients life is much
more complicated than their legal case alone. Clients who are referred to you for help with an
eviction may also have some other problems with which we will be able to assist.
By the time you receive a VLSP client, VLSP has conducted a lengthy and comprehensive
assessment of the clients legal and social services needs. In addition to free legal assistance,
VLSP can provide clients with a variety of social services to help them address the issues that
may be affecting their daily lives. There are a variety of social services volunteer roles:
Social Services Advocate: provides support to clients who may need a little extra help. Will
connect clients to needed services within the City (ex- homeless shelters, public benefits,
employment). May accompany an overwhelmed client to court if needed.
Psychotherapist: provides weekly therapy for clients who need counseling due to mental
health issues, family problems, etc.
Interpreter: provides interpretation services for clients who do not speak English.
Interpreters are available via telephone and in person for legal conferences, court appearances
and telephone consultations.
If your client is involved with a social services volunteer, you will be informed of the
volunteers name and number immediately upon referral. Your interaction with the social
services volunteer is only suggested if it would benefit your clients legal case. If this is the
case, please speak to your client about your desire to contact his or her social services
volunteer to ensure his or her agreement. The social services volunteer needs your clients
agreement in order to divulge any personal information. The social services volunteer may
even require your clients written permission.
Although we do our best to make a comprehensive assessment of every client, there may be
needs that we have not identified or that emerge during the legal process. If you feel that a
client is having difficulties or may benefit from a volunteer, please do not hesitate to call
Julie Rosenthal, Social Services Director at 415-865-9210 any time to discuss your
concerns.
Resource sheets to help you and your clients access services available in the San Francisco
area are available online at Probono.net/bayarea. These sheets can be printed out and given
to clients. They are only provided to serve as a resource guide. Please call Julie Rosenthal,
Social Services Director at 415-865-9210 if you have any questions, or would like to discuss
any concerns or worries.
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