ESPENSCHIED v. MALLICK, 90-CV-1247

• Citation: 633 A.2d 388
• Decision Date: 18 November 1993
• Docket Number: No. 91-CV-281,No. 90-CV-1247,90-CV-1247,91-CV-281
• Parties: Peter ESPENSCHIED, Appellant, v. Raj MALLICK, et al., Appellees.
• Court: Court of Appeals of Columbia District

633 A.2d 388

Peter ESPENSCHIED, Appellant, v. Raj MALLICK, et al., Appellees.

Nos. 90-CV-1247 & 91-CV-281.

District of Columbia Court of Appeals.

Submitted February 11, 1993.

Decided November 18, 1993.

APPEAL FROM THE SUPERIOR COURT, RUFUS G. KING, III AND COLLEEN KOLLAR-KOTELLY, JJ.

Morris R. Battino, Washington, DC, was on the brief for appellant.

Lisa J. Dessel, Washington, DC, was on the brief for appellee.

Before ROGERS, Chief Judge, FARRELL, Associate Judge, and PRYOR, Senior Judge.

PRYOR, Senior Judge:

This appeal arises from the Superior Court's grant of summary judgment in favor of appellees, Raj and Theodora Mallick, in their action for possession of real property against appellant, Peter Espenschied. Appellant contends that the trial court erred (1) by denying appellant's motion to quash service of process, and (2) by failing to consider appellee's claim of retaliatory eviction.¹ We affirm.

Appellant was a commercial tenant operating a bookstore in a mixed-use building owned and managed by appellees, located at 2603 Connecticut Avenue, N.W., Washington, D.C. Appellant's lease expired on December 31, 1989, and specifically permitted "the Lessor [to] re-enter and repossess the said land and premises without notice or demand thereof."² At the expiration of his lease term, appellant was notified that his monthly rental payments would increase from $656.25 to $1200. Appellant's refusal to pay the increase prompted this litigation and his subsequent eviction.³

I.

The facts, as credited by the trial court during a hearing on appellant's motion to quash service of process, indicate that on April 27, 1990, Mr. Joseph Green, a process server with more than twelve years of experience, went to the premises to serve appellant with the summons and complaint for possession. After being informed that appellant was in Florida and that Mr. Hitchcock, appellant's employee, was authorized to receive service, he left the summons and complaint with Mr. Hitchcock.

D.C.Code § 16-1502 (1990) provides: "If the defendant has left the District of Columbia, or cannot be found, the summons may be served by delivering a copy thereof to the tenant, or by leaving a copy with some person above the age of sixteen years residing on or in possession of the premises sought to be recovered." The trial court did not err in finding that appellees' service of process complied with the statute and, accordingly,we find no error.⁴ See Alexander v. Polinger Co., 496 A.2d 267, 269-70 (D.C. 1985); Parker v. Frank Emmet Real Estate, 451 A.2d 62 (D.C. 1982).

II.

Appellant's second contention is that, by granting summary judgment to appellees, the trial court improvidently failed to consider the applicability of a retaliatory eviction defense to commercial leases. Appellant asserts that, by dramatically raising his rent, appellees were retaliating because of

"(1) [appellant's] assistance to the Perry family, residential tenants in the building until about 1985, in their successful defense against the [appellees] in this Court, (2) [appellant's] assistance to the Shah family, residential tenants in the building until 1988, in pursuing housing violation complaints, (3) [appellant's] own follow-up of the Shahs' complaints, which resulted in orders from the housing inspector to repair the main entrance stairway . . ., and (4) [appellant's] own numerous written and oral complaints about damage and deficiencies in the building structure. . . ."⁵

Conceding that "the D.C. Housing Code and D.C.Code Section 45-2552 only create an explicit retaliatory eviction defense in residential tenancy cases," appellant propounds "an implied, common law retaliatory eviction defense" under Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969), which, he argues, "should be extended to commercial tenancies in this jurisdiction."

In Edwards, the landlord commenced eviction proceedings against a month-to-month tenant after her complaint to housing authorities led to the discovery of more than forty sanitary code violations. The United States Court of Appeals for the District of Columbia overturned the ruling in the landlord's favor and held that a tenant could offer evidence of the landlord's retaliation or other improper motive as a defense to the possessory action. Reasoning that "[t]o permit retaliatory evictions, then, would clearly frustrate the effectiveness of the housing code as a means of upgrading the quality of housing in Washington[,]" id. 130 U.S.App. at 139-140, 397 F.2d at 700-701, the court held that although the landlord could evict for any legal reason or for no reason at all, Congress, in providing jurisdiction over possessory actions, did not intend to permit evictions in retaliation for a tenant's report of housing code violations to authorities. In short, "the underlying rationale of th[e] [Edwards] decision is that the Housing Regulations in this jurisdiction were promulgated at the explicit direction of Congress; their purpose is to secure safe and sanitary housing for the housing dwellers; effective implementation of these regulations depends in part on the private reporting of violations; . . . to permit [retaliatory] evictions would undercut the effectiveness of the housing code." Golphin v. Park Monroe Assocs., 353 A.2d 314, 317 (D.C. 1976) (footnote and citation omitted). See R. SCHOSHINSKI, AMERICAN LAW OF LANDLORD & TENANT §§ 12:2, at 721 (1980).

Since Edwards, many states have protected tenant rights either by promulgating statutes which provides protection for tenancy-related activities,⁶ by directly applying theEdwards rationale,⁷ or by implying such rights from the tenant's right of habitability.⁸ In light of appellant's concession that the statutory scheme proscribing retaliatory conduct is limited to the residential sector,⁹ we now turn to consider the latter two theories and any consequences they may have on the instant action.

A.

After an exhaustive review of housingregulations,¹⁰ Congressional reports,¹¹ legal commentaries,¹² and judicial precedent,¹³the court in Edwards concluded that retaliatory eviction was anathema to the goals sought to be advanced by local sanitary and safety codes, particularly in light of the "appalling condition and shortage of housing in Washington, the expense of moving, the inequality of bargaining power between tenant and landlord, and the social and economic importance of assuring at least minimum standards in housing conditions." Id., 130 U.S.App. D.C. at 140, 397 F.2d at 701. Emphasizing the essential role performed by tenants who are uniquely positioned to vouchsafe that landlords respect these "minimum standards," the court concluded that the critical policy considerations underlying safe and habitable housing outweigh any competing policy interest in preserving the summary nature of unlawful detainer actions.

Accordingly, the test subsequently adopted by courts confronted with an Edwards-like situation is "whether the public policies furthered by protecting defendants from eviction outweigh the interests in preserving the summary nature of unlawful detainer proceedings." S.P. Growers Ass'n v. Rodriguez, 17 Cal.3d 719, 131 Cal.Rptr. 761, 762, 552 P.2d 721, 723 (1976). The pattern which has emerged from the burgeoning case law following Edwards is that where the public policy implicated involves housing code violations, residential tenants are generally accorded the right to mount a retaliatory defense. See note 5, supra. Where the protected activity is more tenuously related to the basic decent-housing concern, however, the courts appear to scrutinize more carefully both the underlying value of the particular policy as well as the importance of the tenant's role in vindicating that policy.¹⁴ See 2 POWELL ON REAL PROPERTY ¶ 234[1](a).

A clear application of the latter strategy can be seen in S.P. Growers, supra, where the tenants asserted that the landlord was seeking to evict them in retaliation for the tenants filing suit under the federal Farm Labor Contractor Registration Act. After carefully analyzing the Farm Labor Act's history and noting that a section had been amended to the act which provided for private civil remedies, the court concluded that a retaliatory defense was appropriate because "the federal act relies in large part on the initiation of private litigation for its effectiveness." Again, in Barela v. Superior Court, 30 Cal.3d 244, 178 Cal.Rptr. 618, 636 P.2d 582 (1981), the Supreme Court of California held that the trial court should have considered a retaliatory defense which averred that the landlord was evicting the tenant in retaliation for the tenant's complaint to the police that the landlord had sexually assaulted her nine-year-old daughter. In addition to the important public policy that "[c]itizens have a right and a duty to report violations of the law to the authorities," the court cited the California legislature's goal "to encourage victims to report crimes," and reasoned accordingly that "[t]he effective enforcement of this state's criminal laws depends upon the willingness of victims and witnesses to report crime and to participate in the criminal justice system." 636 P.2d at 586.

The California courts then applied this analytical framework to the commercial sphere in Custom Parking, Inc. v. Superior Court of California, 138 Cal.App.3d 90, 187 Cal.Rptr. 674 (1982), where a commercial tenant was threatened with eviction after his employees and officers refused to perjure themselves in the landlord's favor. Acknowledging the historical schism between commercial and residential tenants, the court nonetheless enunciated the strong public policy favoring truthful testimony which rendered insignificant any distinctions. The court concluded that "to preclude the defense would be to create a class of litigants, commercial landlords, with a legally sanctioned means of punishing...