Yanez v. Vasquez

• Decision Date: 22 April 2021
• Docket Number: No. BV 033326,BV 033326
• Citation: Yanez v. Vasquez, 65 Cal.App.5th Supp. 1, 280 Cal.Rptr.3d 569 (Cal. Super. 2021)
• Parties: Carlos YANEZ, Plaintiff and Appellant, v. Omar VASQUEZ, Defendant and Respondent.
• Court: California Superior Court

65 Cal.App.5th Supp. 1

280 Cal.Rptr.3d 569

Carlos YANEZ, Plaintiff and Appellant,

v.Omar VASQUEZ, Defendant and Respondent.

No. BV 033326

Appellate Division, Superior Court, California. LOS ANGELES COUNTY.

Filed April 22, 2021

Anderson & Associates, Michael D. Anderson, and Andrei V. Serpik, Pasadena, for Plaintiff and Appellant.

Alston & Bird and Gregory S. Berlin ; Inner City Law Center and Kaimipono Wenger, for Defendant and Respondent.

OPINION

Kumar, Acting P. J.

Plaintiff and appellant Carlos Yanez appeals the unlawful detainer (UD) judgment entered in favor of defendant and respondent Omar Vasquez. The judgment was a consequence of a successful motion for summary judgment filed by defendant.

Plaintiff argues for reversal of the order granting summary judgment on procedural grounds as well as on the merits. He contends the trial court erred by considering the motion because defendant failed to give the notice required under Code of Civil Procedure sections 1170.7 and 1013, subdivision (c).¹ Substantively, plaintiff maintains the trial court incorrectly found (a) his failure to obtain a certificate of occupancy for the premises was a complete affirmative defense under Chapter XV of the Los Angeles Municipal Code—the Los Angeles Rent Stabilization Ordinance (LARSO) (L.A. Mun. Code (LAMC) § 151.00 et seq.), and (b) plaintiff could not prevail on his unlawful detainer action because the occupancy was illegal and the underlying lease agreement was therefore void.

Although the notice period fell short by one day, plaintiff waived the issue and appellate relief on that basis is unwarranted due to the dearth of any resulting prejudice to plaintiff. On the merits, the absence of a certificate of occupancy (due to an illegally converted garage) rendered the lease agreement void and, for that reason, an unlawful detainer action could not be based on defendant's failure to comply with its provisions. We affirm the judgment.

BACKGROUND

On October 4, 2019,² plaintiff filed a complaint for possession of a premises located on 42nd Street in the City of Los Angeles. The complaint alleged the parties entered into an oral agreement in February 2007 for a month-to-month tenancy in exchange for a rental payment of $1,000 per month, and that the tenancy was subject to LARSO. The lawsuit was triggered by defendant's failure to comply with a three-day notice to perform covenants or quit. As stated in the notice, defendant allegedly made unlawful modifications to the premises and refused to allow "pest control, and handymen reasonable access for the purpose of making repairs and/or improvements."

On October 15, defendant filed a written answer generally denying each allegation in the complaint and asserting various affirmative defenses, including that plaintiff's demand for possession violated LARSO.

Among the cited violations of LARSO were that the premises were not registered with the City of Los Angeles as required by LAMC section 151.05, and that plaintiff "did not post and/or serve on tenant the Certificate of Registration as required by LAMC [section] 151.05(A)."

Motion for Summary Judgment

Defendant filed a motion for summary judgment, asserting as undisputed material facts that the subject premises was an illegal residential unit subject to LARSO, and that plaintiff failed to register the unit. In relevant part, defendant argued plaintiff's failure to register the unit rendered the occupancy unlawful and the underlying lease agreement an illegal contract. He alleged the violation of LARSO, i.e., the lack of registration, served as a complete affirmative defense to the action.

In support of his motion, defendant filed declarations from himself and his attorney. Attached as exhibits to the latter were the following.

• A Notice and Order to Comply from Los Angeles Housing and Community Investment Department (HCIDLA), dated May 23. The document indicated plaintiff's unit was in violation of specific sections of the LAMC, ordered plaintiff to eliminate the identified violations no later than June 29, and advised plaintiff that an inspection of the premises would be conducted on July 2.

• A July 3 complaint submitted by defendant and a co-tenant to the HCIDLA. It alleged plaintiff attempted to illegally evict the tenants and did not tender relocation assistance fees.

• An inspection notice from the HCIDLA, dated July 15, indicating the premises would be re-inspected on October 2 to verify compliance with applicable codes and regulations, and noting in particular the violation of LAMC section 161.902 identified during the July 2 inspection—i.e., "UNAPPROVED CONSTRUCTION TO CREATE DWELLING UNIT THAT INCLUDES KITCHEN AND BATHROOM."

• A July 16 letter from the HCIDLA, upon review of the July 3 tenant complaint, advising plaintiff of the procedure under LARSO for eviction of a tenant in order to comply with a government order (including payment of relocation benefits).

• A Notice of General Manager's Hearing and Notice of Acceptance into the Rent Escrow Account Program (REAP)³ from the HCIDLA, dated October 31, pertaining to the 42nd Street premises.

In his opposition, plaintiff argued defendant's motion was not timely served and, as a result, plaintiff was not provided with the required notice of five days plus two court days ( §§ 1170.7, 1013, subd. (c) ) for the summary judgment hearing. On the merits, plaintiff maintained his UD action was valid under LAMC section 151.09(A)(2), (3), and (6), which states three of the permitted grounds for eviction under LARSO—the failure to cure a violation of a lawful obligation or covenant of the tenancy, nuisance, and refusal to provide the landlord with reasonable access to the unit.

Plaintiff claimed the lawsuit did not constitute an attempt to enforce an illegal contract because he was not demanding rent and no cause of action alleged defendant failed to pay rent. He took the position that he was not obligated to pay defendant relocation benefits because the basis for the eviction (defendant's unlawful modifications to the unit and refusal of access to it for repairs) is not one of the grounds specified in LAMC section 151.09(G) as requiring the payment of such fees.

The Trial Court's Ruling

The trial court's December 10 decision is documented in a two-page minute order; we have not been provided with a record of the oral proceedings. The court found there were no triable issues of material fact and identified the following as undisputed: (1) the unit was subject to LARSO; (2) the unit consisted of "an illegally converted garage with a kitchen and bathroom"; (3) the HCIDLA "inspected the property and declared it to be an unapproved unit constructed without the requisite building permit(s) and certificates of occupancy or completion"; and (4) no valid rental unit registration certificate was issued by the HCIDLA.

The court determined plaintiff's "undisputed failure to secure and serve the necessary registration certificate constitute[d] a violation of LARSO and provide[d] [d]efendant with an affirmative defense to the unlawful detainer action." Citing Salazar v. Maradeaga (1992) 10 Cal.App.4th Supp. 1, 12 Cal.Rptr.2d 676, the court concluded plaintiff could not bring an action premised on a three-day notice to perform covenants or quit because the underlying lease that formed the basis of his action was void. Judgment in defendant's favor was entered that same day.

DISCUSSION

Notice of Summary Judgment

In an unlawful detainer case, "[a] motion for summary judgment may be made at any time after the answer is filed upon giving five days notice." ( § 1170.7.) The period is extended, however, where notice is served by a method other than personal service, e.g., by five calendar days for service by mail within the State of California. ( § 1013, subd. (a).) In the case of service "by Express Mail or other method of delivery providing for overnight delivery [, the notice period is] ... extended by two court days." ( § 1013, subd. (c).)

"[T]rial courts do not have authority to shorten the minimum notice period for summary judgment hearings." ( McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118, 130 Cal.Rptr.2d 407.) Because "[s]ummary judgment, although a very useful tool in litigation, is also a drastic remedy ..., it is important that all of the procedural requirements for the granting of such a motion be satisfied before the trial court grants the remedy." ( Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1256, 75 Cal.Rptr.2d 681.)

The proof of service attached to defendant's summary judgment motion shows the motion was served by overnight mail on December 4. The notice of motion indicates the hearing was on calendar six days later—December 10. The notice was inadequate because the last day the motion could have been served by overnight mail, given the date of the hearing, was December 3.⁴ Nonetheless, "[n]o judgment shall be set aside, or new trial granted, in any cause, ... for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." ( Cal. Const., art. VI, § 13.)

"[T]he ‘general rule is that one who has been notified to attend a certain proceeding and does do so, cannot be heard to complain of alleged insufficiency of the notice; it has in such instance served its purpose.’ [Citation.]" ( Carlton v. Quint (2000) 77 Cal.App.4th 690, 697, 91 Cal.Rptr.2d 844 ( Carlton ).) If counsel believes he or she has been prejudiced by inadequate notice, counsel "should file the best opposition possible under the circumstances[,] ... includ[ing] counsel's position on the defective-service/inadequate-notice issue, as well as the merits. ... Counsel should then appear at the hearing, object to the hearing taking place because the service was defective and/or inadequate notice of the hearing was received; again explain to the court the...