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REINO
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Sep-01-2011 3:53 pm
Case Number: CUD-11-637267
Filing Date: Aug-30-2011 3:53
Juke Box: 001 Image: 03317127
ORDER
BARRY TAYLOR VS. EVELYN ENGEL et al
001003317127
Instructions:
Please place this sheet on top of the document to be scanned.San Franciscn County Superior Court
AUG 30 2011
CLERK-OF AHE COURT
By Deputy Cenk
SUPERIOR COURT OF CALIFORNIA
COuNTY OF SAN FRANCISCO
BARRY TAYLOR, CASE NO: CUD 11-637267
Plaintiffs
vs.
EVELYN ENGEL, ET AL, APPLICABILITY OF HABITABILITY
Defendants. DEFENSE
In this matter landlord Taylor seeks the eviction of tenant Evelyn Engel and her
subtenant Richard Meghoo. The basis is nuisance, landlord alleging that tenants
constantly and unreasonably complained about noise from other tenants. No issue
regarding rent appears in this case.
The tenants seek to argue the affirmative defense that the landlord interfered with
tenants’ right to quiet use and enjoyment of their apartment. A literal reading of the San
Francisco Rent Ordinance (“Ordinance”) suggests the defense exists. Plaintiff provides
no other plausible reading. Section 37.10B(a)(9) bars the landlord from “in bad faith”
interfering with the right to quiet use and enjoyment; and subsection (c)(3) states in its
last sentence, “A violation of this Chapter may be asserted as an affirmative defense in an
unlawful detainer action.”Evictions based on nuisance are handled differently from the more usual evictions
based on failure to pay rent. The latter are usually subject to a three day notice to pay or
quit, providing the tenant with a means to avoid eviction. Tenants charged with nuisance
generally only receive a notice to quit. C.C.P. § 1161 (4)(nuisance terminates lease).
Habitability is a defense in an action based on rent, C.C.P § 1174.2(a), C.C. §
1942.3, because rent and the provision of habitable premises are correlated or mutually
dependent obligations. T. Friedman et al., CALIFORNIA PRACTICE GUIDE: LANDLORD-
TENANT 9 3:5.1, 3:80 (Rutter Group 2008 & supp.)(“Friedman”). So, in cases of
diminished habitability the court may order a partial rent reduction to account for the
reduced habitability, direct repairs, and permit the tenant to remain in possession on
payment of that reduced rent. Friedman at J 3:85.5, 3:140 et seq. See generally, Larson
v. City and County of San Francisco, 192 Cal.App.4th 1263, 1297 (2011). Thus, the
overall scheme contemplates a complete defense for a truly substantial breach of
habitability, and in effect a partial defense—a reduction in rent—for lesser such breaches.
See generally, Friedman § 3:82 et seq.
No state statute contemplates habitability or an interference with tenants’ right to
quiet enjoyment as a defense to an unlawful detainer case based on nuisance. Nor do the
obligations to refrain from nuisance, and to provide habitable premises, correlate in the
same way as the duties to pay rent and provide habitable premises. The public, such as
other tenants and others, have a powerful interest in the mitigation of nuisance, and
permitting a habitability defense would severely impinge those third party interests. See
e.g., Dowling v. Zimmerman, 85 Cal.App.4th 1400, 1420 (2001)(public issue of nuisance
and safety). Indeed, the core state statute lists of a variety of bad behaviors whichadversely affect the public (including other tenants) as potential nuisances warranting
eviction. C.C.P. § 1161 (4)(domestic violence, stalking, etc.). State policies enabling the
removal of these sorts of tenants would be seriously undermined if they could defend
based on habitability.
The situation is more troubling than may first appear. The thrust of tenants’
position in this case is, and logically must be (following the wording of Ordinance), that
any of the acts proscribed to landlords in § 37.10B(a) bars any eviction action including
those based on nuisance. Thus, for example, the landlord’s failure to cash a check over
30 days, § 37.10B(a)(11), or acknowledge receipt of a check, § 37.10B(a)(10), or request
a social security number, § 37.10B(a)(13), would bar a subsequent action to evict a tenant
committing nuisance such as, for example, by screaming at or threatening other tenants
with gun, running an illegal heroin distribution center, etc. The professed defense, then,
has this remarkable effect: it stands as an assertedly complete defense to eviction, even
when the landlord’s breach is relatively insignificant, and without the mechanism to
correlate the severity of the landlord’s breach to the assertedly reciprocal duty of the
tenant.' This is in contrast to state law on evictions for overdue rent, where, as noted
above, we have a defense (i) solely for substantial breaches of the landlord’s duty on
habitability and (ii) which permits a correlating reduction of rent when those breaches are
less severe.
It is also significant that tenants who are subjected to nuisances by landlord, such
as when a landlord permits other tenants to harass the tenant, have a variety of
mechanisms to be made whole. £.g. Friedman at § 94:24. & 4:26 et seq. But no
" Los Angeles has a similar provision for defenses. Friedman § 5:292 (Los Angeles Rent Stabilization
Ordinance).
weauthority suggests that the state remedies extend to the creation of an affirmative defense
to a nuisance claim against the tenant. Compare, Friedman at [4:29 (is defense to
eviction based on failure to pay rent).
The issue thus is whether the construction offered by tenants here of the
municipal Ordinance conflicts with state law. Action Apt Ass'n. vy. City of Santa Monica,
41 Cal.4" 1232 (2007). At first blush, it would appear that the state-wide policies
referred to above are frustrated by permitting a tenant to raise, as an absolute affirmative
defense to an eviction case alleging nuisance, the allegation that the landlord himself is
creating or permitting a nuisance against the tenant.
But it appears that a municipality does act within its power when it creates
substantive limitations to an unlawful detainer action, as opposed to tampering with the
statewide procedures embodied in the Civil Code:
[A]s the Supreme Court held in Fisher and Birkenjeld, the purpose of the
unlawful detainer statutes is procedural, and they do not preempt municipal
limitations on grounds for eviction that aid in enforcing local rent control
legislation. [Citations] Thus, a local rent control ordinance may permissibly
eliminate a ground for eviction specified in Code of Civil Procedure section 1161
without creating a conflict with the unlawful detainer statutes. [Citations]
Rental Housing Ass'n of Northern Alameda County v. City of Oakland, 171 Cal.App.4th
741 (2009), citing among other cases Fisher v. City of Berkeley, 37 Cal.3d 644, 706-707
(1984); Birkenfeld v. City of Berkeley, 17 Cal.3d 129, 148-149 (1976); Gross v. Superior
Court, 171 Cal.App.3d 265, 272 (1985).
Municipalities clearly have authority to impose substantive limitations on the
grounds for evictions. (Birkenfeld, supra, 17 Cal.3d at pp. 147-150 ....) As the
Supreme Court explained in Birkenfeld, this authority is grounded in “the police
power to impose reasonable regulations upon private property rights to serve the
larger public good.” (/d. at p. 146 ....) The “elimination of particular grounds for
eviction is a limitation upon the landlord's property rights under the police power,
giving rise to a substantive ground of defense in unlawful detainer proceedings.”
Ud. at p. 149...)Such substantive limitations on property rights are not in conflict with the
unlawful detainer statutes because “[t]he purpose of the unlawful detainer statutes
is procedural. The statutes implement the landlord's property rights by permitting
him to recover possession once the consensual basis for the tenant's occupancy is
at an end.” (Birkenfeld, supra, 17 Cal.3d at p. 149, ....) The “statutory remedies
for recovery of possession ... do not preclude a defense based on municipal rent
control legislation enacted pursuant to the police power imposing rent ceilings
and limiting the grounds for eviction for the purpose of enforcing those rent
ceilings.” (/bid.)
Larson v. City and County of San Francisco, 192 Cal.App.4th 1263, 1298-1299 (2011).
Thus it appears that even if San Francisco’s ordinance eviscerates the ability of a
landlord to evict a tenant for nuisance, such as when the landlord himself is liable for a
nuisance, the courts should enforce the ordinance.”
Accordingly, if the jury determines that the plaintiff landlord has proven his case
against defendants, the jury in this case should be asked to respond to the question
whether, in effect, the landlord has breached his duty to defendants to provide quiet use
and enjoyment of the apartment. To preserve the issue for appeal, the jury should also be
provided the opportunity, regardless of its response to this question, of determining
whether the defendants have made out their other defenses as well. The court will then
enter judgment accordingly.
a
‘Curtis E.A. Karnow
Judge Of The Superior Court
Dated: August 30, 2011 <
? “It is not the province of the judiciary to pass upon the wisdom and policy of legislation; and when it does
so, it usurps a power never conferred by the Constitution.” Ex parte Newman, 9 Cal. 502, 520, 1858 WL
826, 17 (1858).
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REINO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Sep-01-2011 3:53 pm Case Number: CUD-11-637267 Filing Date: Aug-30-2011 3:53 Juke Box: 001 Image: 03317127 ORDER BARRY TAYLOR VS. EVELYN ENGEL et al 001003317127 Instructions: Please place this sheet on top of the document to be scanned.San Franciscn County Superior Court AUG 30 2011 CLERK-OF AHE COURT By Deputy Cenk SUPERIOR COURT OF CALIFORNIA COuNTY OF SAN FRANCISCO BARRY TAYLOR, CASE NO: CUD 11-637267 Plaintiffs vs. EVELYN ENGEL, ET AL, APPLICABILITY OF HABITABILITY Defendants. DEFENSE In this matter landlord Taylor seeks the eviction of tenant Evelyn Engel and her subtenant Richard Meghoo. The basis is nuisance, landlord alleging that tenants constantly and unreasonably complained about noise from other tenants. No issue regarding rent appears in this case. The tenants seek to argue the affirmative defense that the landlord interfered with tenants’ right to quiet use and enjoyment of their apartment. A literal reading of the San Francisco Rent Ordinance (“Ordinance”) suggests the defense exists. Plaintiff provides no other plausible reading. Section 37.10B(a)(9) bars the landlord from “in bad faith” interfering with the right to quiet use and enjoyment; and subsection (c)(3) states in its last sentence, “A violation of this Chapter may be asserted as an affirmative defense in an unlawful detainer action.”Evictions based on nuisance are handled differently from the more usual evictions based on failure to pay rent. The latter are usually subject to a three day notice to pay or quit, providing the tenant with a means to avoid eviction. Tenants charged with nuisance generally only receive a notice to quit. C.C.P. § 1161 (4)(nuisance terminates lease). Habitability is a defense in an action based on rent, C.C.P § 1174.2(a), C.C. § 1942.3, because rent and the provision of habitable premises are correlated or mutually dependent obligations. T. Friedman et al., CALIFORNIA PRACTICE GUIDE: LANDLORD- TENANT 9 3:5.1, 3:80 (Rutter Group 2008 & supp.)(“Friedman”). So, in cases of diminished habitability the court may order a partial rent reduction to account for the reduced habitability, direct repairs, and permit the tenant to remain in possession on payment of that reduced rent. Friedman at J 3:85.5, 3:140 et seq. See generally, Larson v. City and County of San Francisco, 192 Cal.App.4th 1263, 1297 (2011). Thus, the overall scheme contemplates a complete defense for a truly substantial breach of habitability, and in effect a partial defense—a reduction in rent—for lesser such breaches. See generally, Friedman § 3:82 et seq. No state statute contemplates habitability or an interference with tenants’ right to quiet enjoyment as a defense to an unlawful detainer case based on nuisance. Nor do the obligations to refrain from nuisance, and to provide habitable premises, correlate in the same way as the duties to pay rent and provide habitable premises. The public, such as other tenants and others, have a powerful interest in the mitigation of nuisance, and permitting a habitability defense would severely impinge those third party interests. See e.g., Dowling v. Zimmerman, 85 Cal.App.4th 1400, 1420 (2001)(public issue of nuisance and safety). Indeed, the core state statute lists of a variety of bad behaviors whichadversely affect the public (including other tenants) as potential nuisances warranting eviction. C.C.P. § 1161 (4)(domestic violence, stalking, etc.). State policies enabling the removal of these sorts of tenants would be seriously undermined if they could defend based on habitability. The situation is more troubling than may first appear. The thrust of tenants’ position in this case is, and logically must be (following the wording of Ordinance), that any of the acts proscribed to landlords in § 37.10B(a) bars any eviction action including those based on nuisance. Thus, for example, the landlord’s failure to cash a check over 30 days, § 37.10B(a)(11), or acknowledge receipt of a check, § 37.10B(a)(10), or request a social security number, § 37.10B(a)(13), would bar a subsequent action to evict a tenant committing nuisance such as, for example, by screaming at or threatening other tenants with gun, running an illegal heroin distribution center, etc. The professed defense, then, has this remarkable effect: it stands as an assertedly complete defense to eviction, even when the landlord’s breach is relatively insignificant, and without the mechanism to correlate the severity of the landlord’s breach to the assertedly reciprocal duty of the tenant.' This is in contrast to state law on evictions for overdue rent, where, as noted above, we have a defense (i) solely for substantial breaches of the landlord’s duty on habitability and (ii) which permits a correlating reduction of rent when those breaches are less severe. It is also significant that tenants who are subjected to nuisances by landlord, such as when a landlord permits other tenants to harass the tenant, have a variety of mechanisms to be made whole. £.g. Friedman at § 94:24. & 4:26 et seq. But no " Los Angeles has a similar provision for defenses. Friedman § 5:292 (Los Angeles Rent Stabilization Ordinance). weauthority suggests that the state remedies extend to the creation of an affirmative defense to a nuisance claim against the tenant. Compare, Friedman at [4:29 (is defense to eviction based on failure to pay rent). The issue thus is whether the construction offered by tenants here of the municipal Ordinance conflicts with state law. Action Apt Ass'n. vy. City of Santa Monica, 41 Cal.4" 1232 (2007). At first blush, it would appear that the state-wide policies referred to above are frustrated by permitting a tenant to raise, as an absolute affirmative defense to an eviction case alleging nuisance, the allegation that the landlord himself is creating or permitting a nuisance against the tenant. But it appears that a municipality does act within its power when it creates substantive limitations to an unlawful detainer action, as opposed to tampering with the statewide procedures embodied in the Civil Code: [A]s the Supreme Court held in Fisher and Birkenjeld, the purpose of the unlawful detainer statutes is procedural, and they do not preempt municipal limitations on grounds for eviction that aid in enforcing local rent control legislation. [Citations] Thus, a local rent control ordinance may permissibly eliminate a ground for eviction specified in Code of Civil Procedure section 1161 without creating a conflict with the unlawful detainer statutes. [Citations] Rental Housing Ass'n of Northern Alameda County v. City of Oakland, 171 Cal.App.4th 741 (2009), citing among other cases Fisher v. City of Berkeley, 37 Cal.3d 644, 706-707 (1984); Birkenfeld v. City of Berkeley, 17 Cal.3d 129, 148-149 (1976); Gross v. Superior Court, 171 Cal.App.3d 265, 272 (1985). Municipalities clearly have authority to impose substantive limitations on the grounds for evictions. (Birkenfeld, supra, 17 Cal.3d at pp. 147-150 ....) As the Supreme Court explained in Birkenfeld, this authority is grounded in “the police power to impose reasonable regulations upon private property rights to serve the larger public good.” (/d. at p. 146 ....) The “elimination of particular grounds for eviction is a limitation upon the landlord's property rights under the police power, giving rise to a substantive ground of defense in unlawful detainer proceedings.” Ud. at p. 149...)Such substantive limitations on property rights are not in conflict with the unlawful detainer statutes because “[t]he purpose of the unlawful detainer statutes is procedural. The statutes implement the landlord's property rights by permitting him to recover possession once the consensual basis for the tenant's occupancy is at an end.” (Birkenfeld, supra, 17 Cal.3d at p. 149, ....) The “statutory remedies for recovery of possession ... do not preclude a defense based on municipal rent control legislation enacted pursuant to the police power imposing rent ceilings and limiting the grounds for eviction for the purpose of enforcing those rent ceilings.” (/bid.) Larson v. City and County of San Francisco, 192 Cal.App.4th 1263, 1298-1299 (2011). Thus it appears that even if San Francisco’s ordinance eviscerates the ability of a landlord to evict a tenant for nuisance, such as when the landlord himself is liable for a nuisance, the courts should enforce the ordinance.” Accordingly, if the jury determines that the plaintiff landlord has proven his case against defendants, the jury in this case should be asked to respond to the question whether, in effect, the landlord has breached his duty to defendants to provide quiet use and enjoyment of the apartment. To preserve the issue for appeal, the jury should also be provided the opportunity, regardless of its response to this question, of determining whether the defendants have made out their other defenses as well. The court will then enter judgment accordingly. a ‘Curtis E.A. Karnow Judge Of The Superior Court Dated: August 30, 2011 < ? “It is not the province of the judiciary to pass upon the wisdom and policy of legislation; and when it does so, it usurps a power never conferred by the Constitution.” Ex parte Newman, 9 Cal. 502, 520, 1858 WL 826, 17 (1858).