Newby v. Alto Riviera Apartments

• Decision Date: 20 July 1976
• Citation: 131 Cal.Rptr. 547,60 Cal.App.3d 288
• Parties: Nicki NEWBY, Plaintiff and Appellant, v. ALTO RIVIERA APARTMENTS et al., Defendants and Respondents. Civ. 36556.
• Court: California Court of Appeals Court of Appeals

Page 547

131 Cal.Rptr. 547

60 Cal.App.3d 288

Nicki NEWBY, Plaintiff and Appellant, v. ALTO RIVIERA APARTMENTS et al., Defendants and Respondents.

Civ. 36556.

Court of Appeal, First District, Division 4, California.

July 20, 1976.

Thomas G. Perkins, San Jose, for plaintiff and appellant

Anthony C. Bennetti, Mager & Matthews, San Jose, for defendants and respondents.

CHRISTIAN, Associate Justice.

Appellant Nicki Newby brought suit against the owners and the managers of the Alto Riviera Apartments in Palo Alto seeking declaratory relief, an injunction and damages in connection with alleged threats by defendants to evict appellant from her apartment. The action was tried simultaneously to a jury as to legal causes of action and to the court as to the causes of action for an injunction and declaratory relief. At the close of appellant's evidence, respondents moved for a judgment of nonsuit on the jury causes of action and for judgment under section 631.8 of the Code of Civil Procedure on the other causes of action. The court granted judgment for respondents on all causes of action. The present appeal followed.

Appellant is a tenant at the Alto Riviera apartment complex. The owners announced a rent increase in the fall of 1973. Appellant and other tenants began to discuss the issue. A meeting of tenants was organized; at the meeting, a petition to the owner was drafted, requesting the owner to attend a meeting to discuss the rent increases. Appellant and another tenant obtained the signatures on the petition of nineteen tenants; the petition was delivered to respondent Eva Molin, the resident manager. Shortly thereafter, respondents George and Molin came to appellant's apartment. Respondent George called appellant a troublemaker and accused her of upsetting the other tenants. After an angry discussion, he gave appellant an oral three-day eviction notice which was followed the same day by a written notice. Respondent Regnart, worried about the possibility of a rent strike, also directed appellant to vacate the premises, saying that he would obtain a court order to remove appellant. Appellant refused to vacate; she testified that Regnart then stated, 'If we have to, we will deal with this like they do down South.' On November 9, 1973, appellant received a 30-day eviction notice; the earlier three-day notice was withdrawn.

No court action for eviction has been commenced; at the time of trial, appellant was still occupying her apartment.

RETALIATORY EVICTION

General and punitive damages were sought on a theory of retaliatory eviction. Appellant contends that she presented substantial evidence that respondents served notice of eviction on her because she organized meetings with tenants to discuss rental policies and that this action by respondents violated her constitutional right of free speech and assembly.

A limited cause of action for retaliatory eviction is created by section 1942.5 of the Civil Code. The code prohibits retaliation against a 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, . . .' The rights protected under the chapter relate to the fitness of buildings for human occupancy and the lessor's duty to repair. Respondent Regnart testified that appellant was served with an eviction notice because it was feared that she would organize a rent strike. Respondent George said that he gave appellant notice to quit because he considered her a 'ringleader' in a threatened rent strike. However, appellant was not demanding that premises be made habitable within the meaning of section 1942.5; she was organizing tenants to object to a rent increase. Section 1942.5 gives no protection from retaliation for such activity. Therefore, appellant presented no evidence of retaliatory eviction in violation of Civil Code section 1942.5.

The question remains whether appellant presented substantial evidence supporting a cause of action for damages for 'unlawful' eviction based upon interference by respondents with her constitutional right of free speech and assembly. Appellant alleged that the institution of summary proceedings to evict her in retaliation for her actions in organizing tenants would constitute The constitutionality of judicial proceedings to evict a tenant who has organized contenants to object to business practices and rental increases has not been considered in California decisions. However, state action, in the form of a landlord's use of the court's process, to carry out an eviction on the basis of race violates the Fourteenth Amendment. In Abstract Investment Co. v. Hutchinson (1962) 204 Cal.App.2d 242, 22 Cal.Rptr. 309, that issue was raised in an appeal by the defendant tenant from an unlawful detainer judgment. The court held that to deny the tenant an opportunity to present constitutional defenses was improper. The court held that the defense of discrimination, if proven, would bar the court from ordering an eviction because such 'state action' would be violative of both federal and state constitutions. (204 Cal.App.2d at p. 255, 22 Cal.Rptr. 309.) In contrast, the Supreme Court, in Hill v. Miller (1966) 64 Cal.2d 757, 51 Cal.Rptr. 689, 415 P.2d 33, held that in the absence of a statute prohibiting racial discrimination in private housing or of 'state action' the tenant could not obtain an injunction against the threatened eviction. The court stated that '(t)he Fourteenth Amendment does not impose upon the state the duty to take positive action to prohibit a private discrimination of the nature alleged here.' (64 Cal.2d at p. 759, 51 Cal.Rptr. at p. 690, 415 P.2d at p. 34.) Abstract Investment Co. was distinguished as involving a summary proceeding which used the processes of the court in discriminatory action.

state action. Appellant seems to contend in addition that because the First Amendment of the United States Constitution and sections 9 and 10 (nonsections 2 and 3) of article I of the California Constitution protect her freedom of expression and freedom to associate, an action for damages to vindicate the same interests should be created even in the absence of state action.

The holding in Hill v. Miller has recently been expanded in Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 97 Cal.Rptr. 650. The court in Aweeka held that a tenant may be awarded damages and injunctive relief as the situation did not involve a threatened eviction for exercising constitutional rights, but involved an actual eviction due to a double fold rent increase. No other California decision has drawn from the constitutional language protecting citizens from government oppression a right on the part of a tenant to seek relief from a threatened eviction. California courts have recognized the right only to raise constitutional defenses in judicial proceedings brought to evict tenants. (Abstract Investment Co. v. Hutchinson, supra, 204 Cal.App.2d at p. 245, 22 Cal.Rptr. 309.)

It may be argued that the requisite state action is present when the landlord serves a notice to evict a tenant as a prerequisite to an intended initiation of unlawful detainer proceedings. But before the conduct of a private party will be prohibited, it is necessary to show state involvement. The government must be responsible for inhibiting the right of the tenant. (Edwards v. Habib (1968) 130 U.S.App.D.C. 116, 397 F.2d 687, 690--691.) Both California and federal decisions find sufficient state action in the judicial enforcement of a private action which violates a protected statutory or constitutional right. Thus, in Shelley v. Kraemer (1948) 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, where a restrictive covenant had been enforced by a state court to prevent a seller from conveying his property to a Negro buyer, the Supreme Court found the requisite state action in the judicial intervention in a voluntary transaction. Similarly, in Hosey v. Club Van Cortlandt (S.D.N.Y.1969) 299 F.Supp. 501, a case relied upon by appellant, the court recognized that a state could not take action to penalize the exercise of the right to organize tenants to improve conditions protected by the First Amendment. The federal court refused to enjoin a New York summary proceeding because it was unsettled in New York law whether retaliation in violation of constitutional Other federal courts have refused to extend Shelley to a situation where a state only provides the forum for a landlord to enforce his rights concerning his own property. In Mullarkey v. Borglum (D.C., 1970) 323 F.Supp. 1218, tenants brought an action for injunctive relief and damages against a landlord on grounds that eviction proceedings had been instituted against tenants for their organizing activities in violation of constitutional and statutory rights. The court held that allegations claiming that the mere use of the state courts in eviction proceedings was state action were insufficient 'without a showing of conscious state involvement in the unlawful conduct or a history of unconstitutional state conduct.' (Id. at pp. 1226--1227.) (See also Stevens v. Frick (2d Cir. 1967) 372 F.2d 378, cert. den. 387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 973 (1967); 46 So.Cal.L.Rev. 132.)

rights was a defense in such proceedings. Therefore, the court would not grant injunctive relief unless the state was sufficiently involved in prohibiting the exercise of those protected rights. Applying the rationale of Hosey, Abstract, and Shelley, state action is found if a state court provides the machinery to a landlord to enforce discriminatory action. In Shelley, the state courts had continuously enforced restrictive covenants, and had provided 'the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights'. (Id. 334 U.S. at p. 19, 68 S.Ct. at p. 845.)

Similarly, we conclude that the serving of a notice to quit, which...