Kriz v. Taylor

• Decision Date: 25 April 1979
• Court: California Court of Appeals Court of Appeals
• Parties: Frank KRIZ, Plaintiff and Respondent, v. Helen TAYLOR, Defendant and Appellant. Civ. 55162.

Page 824

154 Cal.Rptr. 824

92 Cal.App.3d 302

Frank KRIZ, Plaintiff and Respondent, v. Helen TAYLOR, Defendant and Appellant.

Civ. 55162.

Court of Appeal, Second District, Division 3, California.

April 25, 1979.

Southwestern Clinical Law Center, and Richard C. Solomon, Los Angeles, for defendant and appellant.

Dicker & Dicker, Robert L. Dicker, and Robert M. Scholnick, Los Angeles, for plaintiff and respondent.

Western Center on Law & Poverty, Inc., John E. McDermott, Los Angeles, Robert T. Olmos, Delano, Patricia M. Tenoso, Richard A. Rothschild, Legal Aid Foundation, Los Angeles, Richard A. Paez, and Pamela White, Los Angeles, for amicus curiae on behalf of defendant and appellant.

POTTER, Associate Justice.

Helen Taylor (hereinafter Tenant) appeals from a December 6, 1977, municipal court judgment in an unlawful detainer action awarding Frank Kriz (hereinafter Landlord) restitution of the premises and $371 as rent and damages.

A prior unlawful detainer action by Landlord against Tenant had resulted in entry of judgment in favor of Tenant on September 1, 1977. The court therein specifically found that Landlord had breached the warranty of habitability, that his "dominant purpose" in seeking to evict Tenant was retaliation for her complaints about said breach to Landlord and to the County Health Services Department, and that as an offset for damages suffered from this breach, Tenant was not obligated to pay rent for the month of August.

On September 8, 1977, seven days after the first judgment, Landlord served Tenant with a 30-day notice to quit. Tenant's tender of rent for the month of September was refused. On October 12, 1977, the new unlawful detainer complaint in this action was filed. Neither the 30-day notice nor the complaint stated any ground upon which Landlord, in good faith, sought to recover possession.

Tenant demurred to the complaint on the ground that (taking judicial notice of the prior finding) "[b]ased on [Civil Code] ¹ Sec. 1942.5(a)(4) ² and public policy behind it [Landlord] is precluded from evicting [Tenant] for 60 days from the date of the judgment handed down on September 1, 1977, unless he pleads the grounds upon which he, in good faith, seeks to recover possession, pursuant to California Civil Code section 1942.5(d)." ³

Landlord filed points and authorities in opposition, asserting, "The subject Code Section does not prohibit the serving of a notice, does not prohibit the filing of a lawsuit, but, if anything at all, prohibits the recovery of possession in an action or proceeding within the 60-day period," and pointing out that the 60-day period would expire before the matter came to trial. On November 7, the court overruled the demurrer.

Tenant's answer, filed November 8, raised affirmative defenses of breach of the warranty of habitability and of retaliatory eviction in violation of section 1942.5 and "case law." A court trial was held November 30. As the engrossed statement on appeal states:

"[Tenant] objected to any evidence regarding good cause to evict on the grounds that Civ.Code § 1942.5(d) precludes evidence of good cause to rebut a claim of retaliatory eviction unless the facts alleged constituting good cause were first in the 30 (or 3) day notice and pleaded in [Landlord's] complaint, which had not been done here. This objection was overruled on the grounds that Civ.Code § 1942.5(a) allows a landlord to give notice within sixty days and only prevents the court from awarding possession to [Landlord] within said period."

Thereafter, Landlord presented evidence that Tenant's pets created a nuisance of which other tenants complained.

At the end of Landlord's case, Tenant moved for judgment (Code Civ.Proc., § 631.8) in her favor on the ground that Landlord's action constituted a per se retaliatory eviction "in violation of Civil Code § 1942.5 and of common law rule against retaliatory eviction announced in Schweiger v. Superior Court ((1970) 3 Cal.3d 507, 90 Cal.Rptr. 729, 476 P.2d 97)." The motion was denied. Tenant then testified in her own defense.

No findings of fact were requested or made. ⁴ On December 6, 1977, the court entered judgment for Landlord awarding him $371 and restitution of the premises. On December 22, 1977, Tenant filed her notice of appeal. ⁵ Tenant's engrossed settled statement was filed February 28, 1978. No objection thereto was made by Landlord and on July 25, 1978, it was settled as filed.

One month after the judgment was entered, Tenant vacated the premises and Landlord filed a complete satisfaction of judgment, though the monetary award was not paid.

Contentions

Tenant contends that (1) the appeal should not be dismissed as moot, and (2) the judgment must be reversed because section 1942.5, subdivision (a), prohibits serving eviction notices during the 60-day period unless they meet the requirements of subdivision (d) thereof by stating the ground upon which the lessor, in good faith, seeks to recover possession.

Landlord contends that (1) the appeal should be dismissed as moot, and (2) section 1942.5, subdivision (a), prohibits only the actual entry of judgment evicting the tenant within the 60-day period.

Discussion

Summary

Since the construction of the retaliatory eviction statute ⁶ is a recurring issue, we decline to dismiss the appeal, though it is moot. In view of the prior judgment and finding, retaliation must be deemed the dominant purpose of Landlord in attempting to terminate the tenancy. The 60-day provision of section 1942.5 is therefore applicable. Landlord's interpretation that he can serve such a retaliatory notice immediately so long as he does not recover possession within 60 days would substantially frustrate the statutory purpose that "the lessor may not . . . cause the lessee to quit involuntarily." On the other hand, the language in the statute does not support Tenant insofar as she claims that the service of a notice within such 60-day period is prohibited even if the resultant termination date falls after the end of the 60-day period. The date of termination of the tenancy is the critical date since the tenant who quits on or after such date does so "involuntarily." The 30-day notice herein resulted in the termination of the tenancy 37 days after the prior judgment. It stated no grounds upon which the lessor, in good faith, sought to recover possession. Therefore, it was ineffective to terminate Tenant's rights.

The Appeal Should Not Be Dismissed As Moot

Preliminarily, we reject Landlord's contention that the appeal should be dismissed as moot because Tenant has vacated the premises and Landlord has filed a complete satisfaction of judgment. As our Supreme Court pointed out in Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716, 106 Cal.Rptr. 21, 23, 505 P.2d 213, 215: "If an action involves a matter of continuing public interest and the issue is likely to recur, a court may exercise an inherent discretion to resolve that issue, even though an event occurring during its pendency would normally render the matter moot."

It is evident that the question of the applicability of section 1942.5 "involves a matter of continuing public interest" (id., at p. 715, 106 Cal.Rptr. at p. 23, 505 P.2d at p. 215) which may evade review because the time periods involved in this statute are relatively short. Furthermore, as in Liberty, "appellate review has been and may continue to be thwarted by the filing of a notice of satisfaction of judgment . . . ." (id., at p. 716, 106 Cal.Rptr. at p. 23, 505 P.2d at p. 215).

Landlord's Dominant Purpose Was Retaliation Against Tenant

On September 1, 1977, the municipal court, in the prior unlawful detainer proceeding, made its finding that Landlord's "dominant purpose in seeking to evict [Tenant] is retaliation against (Tenant) because [Tenant] complained to plaintiff and to the County Health Services Department concerning breach of the warranty of habitability and sought to secure rectification of that breach." A week later, Landlord served a 30-day notice to quit. Though, as noted by our Supreme Court in Schweiger v. Superior Court, supra, 3 Cal.3d 507, 90 Cal.Rptr. 729, 476 P.2d 97, a landlord's illegal purpose found to exist one week previously is not deemed to exist " 'in perpetuity' " and may be " 'dissipated' " (id., at p. 517, 90 Cal.Rptr. 729, 476 P.2d 97), there was no evidence presented in the trial court from which any such dissipation could be inferred here. Considerable evidence was offered tending to impugn Tenant's desirability as a tenant but no attempt was made to show that any new circumstances arose after the finding in question.

We, therefore, treat the case as one in which the dominant purpose of Landlord in terminating the tenancy, effective October 8, 1977, was retaliation against Tenant.

Termination of the Tenancy "Cause[s] the Lessee to Quit Involuntarily"

The full text of the retaliatory eviction statute provides:

"(a) If the lessor has as his dominant purpose retaliation against the lessee because of the exercise by the lessee of his rights under this chapter or because of his complaint to an appropriate governmental agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of his rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services, within 60 days:

"(1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942; or

"(2) After the date upon which the lessee, in good faith, has filed a written complaint, with an appropriate governmental agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability; or

"(3) After the date of an inspection or issuance of a citation, resulting from a written complaint described in paragraph (2) of which the lessor did not have notice; or

"(...