The eviction

Scene I: The Garden of Eden

[Adam holds an apple, which has two fresh bite marks.]

A deep voice rumbles across the cosmos: GET OUT!

Adam: Now you've done it. We're homeless!

Eve: I shouldn't have listened to that reptile. Well, we'd better pack up. And put on some clothes. We're going job-hunting.

[As Adam puts on a suit and tie, The Serpent slithers out from under

a rock.]

Adam: Where's my resume? You know, it doesn't seem fair, kicking us out for just one lousy apple.

The Serpent: It's not fair.

Eve: You! You slimy...

The Serpent: Sorry about my little suggestion. Seemed like a good idea at the time. But He can't just throw you out, you know. Tenants have rights!

Adam: Rights? But He's... He's...

The Serpent: Yeah, yeah. So what? I've never met a landlord who didn't think he was God.

Adam: What can we do?

The Serpent: Go see my brother-in-law, Bernie the Attorney. Here's his card. Tell him I sent you, and maybe he'll give you a deal.

Eve: If this is another one of your tricks...

The Serpent: Trust me.

Scene II: A Lawyer's Office

Bernie: So that's it, folks. The Landlord can't use self-help to evict you. He's gotta serve you with a proper notice and then go to court. The old common law allowed a landlord to use self-help, but today our California Supreme Court won't allow it. The court has held that when the Legislature enacted eviction laws, it meant to give the landlord a quick legal remedy, so he wouldn't have to use self-help -- which often led to fights. Jordan v. Talbot, 55 Cal. 2d 597 (1961).

Adam: We're in California? I thought this was the Middle East.

Bernie: Look around you, Adam. Sunny skies. Palm trees. A pretty lady wearing nothing but a fig leaf. A snake behind every bush. Believe me babes, it's Southern California.

Eve: So if He gives us a notice and goes to court, then He can throw us out?

Bernie: Not necessarily. We might have some defenses.

Adam: Like what?

Bernie: Like maybe the implied warranty of habitability. Green v. Superior Court, 10 Cal. 3d 616 (1974). A residential landlord has to provide a roof that doesn't leak, plumbing that works, proper heating, proper wiring (see Civil Code Section 1941.1, which sets out the landlord's duties under the "repair & deduct" doctrine. While Green established the implied warranty of habitability as a common law doctrine, the court indicated that these statutory standards may be used as guidance regarding the scope of the landlord's duties.10 Cal.3d at 637).

Eve: Roof? Wiring? What are you talking about, Bernie? We live in a garden.

Bernie: Exactly. Just like animals. No bathroom, no kitchen. Not even a roof. This guy's nothing but a slum lord.

Adam: But we never objected to living that way.

Bernie: Doesn't matter. A tenant's rights under the implied warranty are non-waivable. Id. at 625. And the fact that you knew of the problems when you began your tenancy doesn't matter either. Knight v. Hallsthammar, 29 Cal. 3d 46, 54 (1981). And normally, the tenant must give the landlord notice of the defects, but not here, where the owner knows about them. Calif. Eviction Defense Manual, 2nd Ed., Section 15.33. So our case for breach of the warranty looks pretty good.

Adam: So what can you do?

Bernie: I'll send Him a little note -- the Bernie Special. I tell Him that unless He backs off, we'll sue Him for wrongful eviction and breach of the implied warranty of habitability. Wouldn't that be nice? Talk about deep pockets! Anyway, they usually give up when they get one of my letters.

Eve: Good. Send Him the letter.

Bernie: Fine. Right after you guys take care of the First Commandment.

Adam: You mean, "Thou shalt have no other gods before Me"?

Bernie: No. The other First Commandment: "Thou Shalt Pay Thy Lawyer -- Up Front!" So, how many figs you got?

Scene III: Heaven

Peter (reading Bernie's letter): Outrageous! Who does he think he is? You?

The Landlord: He's just doing his job, Peter.

Peter: And You're just doing yours, Sir. It's time to get rid of them. Here.

[Peter hands Him a thunderbolt, but He waves it off.]

The Landlord: Not that way. As Bernie points out, self-help evictions are forbidden by the law.

Peter: The law? Aren't you above that sort of thing, Sir?

The Landlord: Am I not the God of Justice and Mercy? Image is everything, Peter.

Peter: I see your point, Sir. But what can we do?

The Landlord: Just what they did -- retain competent legal counsel. Behold!

[Arising out of a cloud is a figure wearing a pin-striped robe -- with vest -- and cordovan wing-tip shoes, with matching briefcase. Enter Larry The Lawyer.]

Larry: Hi, Guys.

The Landlord: Larry spent his professional life representing landlords.

Peter: Then how did he get in here?

The Landlord: I was about to ask you that, Peter.

Peter: Uh, yes. I meant to tell you, Sir. Larry was shot and killed by a little old widow he had evicted on Christmas Eve. But my computer was down that day, and I missed it. Sorry.

The Landlord: Well, I'm not sure he belongs here, but if he serves us well, I might let him stay.

Larry: I'll get those deadbeats out for You, Sir.

The Landlord: What do you recommend, Larry?

Larry: First we have to figure out what sort of tenancy they have. What kind of deal did You make with them?

The Landlord: Deal? I don't know. I created them and then just let them stay there.

Larry: Sounds like a tenancy at will. You can terminate that on 30-day notice. Civ. Code Section 789. How much is the rent?

The Landlord: Rent? They don't have money.

Larry: So they don't pay anything?

The Landlord: Well, they do pay homage to Me every month.

Larry: That'll do. Did they miss any homage payments? If they did, we could give them a three-day notice to pay up or get out. Code Civ. Proc. Section 1161(2).

The Landlord: No, they've been very pious. Indeed, they pray to Me almost every Saturday.

Larry: So they're Jewish?

Peter: Not yet. We're only in Genesis.

Larry: I forgot. So if they pay their homage monthly, we seem to have a month-to-month tenancy.

Peter: Even if we never said anything about that?

Larry: Right. If they pay month-to-month, then the law presumes that's your deal. Civ. Code Section 1944.

Peter: How do we put an end to it?

Larry: Under state law, a landlord may terminate a month-to-month tenancy simply by serving a 30-day notice tenancy saying so. You don't need any reason. Civ. Code Section 1946.

Peter: Great. Let's do it.

Larry: Uh, we have a little problem.

Peter: Problem?

Larry: Eden has rent control.

The Landlord: Rent control! Me forbid!

Peter: Many owners have prayed for that, Sir.

Larry: The California Supreme Court has ruled that cities and counties have the option of adopting rent control. Birkenfeld v. City of Berkeley, 17 Cal. 3d 129 (1976). The City of Eden is one of the few that's done it. Eden's City Council was taken over by a bunch of left-wing nuts. Landlords call it the People's Republic of Eden.

The Landlord: Owners say they have a Me-given right to charge as much as the market will bear. They also say that rent control violates the Constitution.

Larry: They argued that in some suits they filed, but the courts have held that rent control doesn't deny due process, so long as communities don't limit rent increases in a way that stops a landlord from getting a fair return on investment. Fisher v. City of Berkeley, 37 Cal. 3d 644 (1984), affirmed, 475 U.S. 260 (1986).

Peter: Why do we care about rent control? We haven't increased their homage payments.

Larry: Good question. When a city enacts rent control, they usually pass eviction controls along with it, so landlords can't undermine rent control by threatening to evict tenants. So even though state law allows a landlord to terminate a fixed-term tenancy or a month-to-month tenancy for no reason, Eden requires "good cause." The courts have allowed them to do this. Birkenfeld, 17 Cal. 3d at 147.

Peter: What's "good cause"?

Larry: Eden's ordinance -- which is pretty typical -- has a list of good causes. There's really two types of good cause. One type involves some misbehavior by the tenant, and the other type involves the owner's need to recover possession. On misbehavior, the first kind is failure to pay rent on time, but Adam and Eve paid the rent. Next, using the premises for an illegal purpose -- like prostitution or drug-selling. No evidence of that here either. Next, illegal subletting. Nope. Next, maintaining a nuisance or committing waste.

Peter: They wasted an apple.

Larry: Won't work. Waste has to diminish the market value of the property significantly. Rowe v. Wells Fargo Realty, Inc., 166 Cal. App. 3d 310 (1985). If they had chopped down the tree, maybe. But picking an apple? No way.

Peter: What about the owner's need to recover possession?

Larry: Well, that breaks down into several grounds. First is the owner's need to rehabilitate the place to cure housing code violations, but then you have to let them reoccupy the premises when the work is completed. I don't think you want to do that here.

Peter: We sure don't.

Larry: Then we have the owner's right to recover possession for himself or a member of his family. Do You have a son You want to put in there, Sir?

The Landlord: Not yet.

Larry: Just as well. Using that ground can get you sued, if the tenant can prove that you weren't acting in good faith. Sometimes an owner will give a phony eviction notice which says that he wants to move himself or a relative in, just to get the tenant out and raise the rent. This happens a lot where the ordinance has a "vacancy decontrol" provision, which allows the owner to raise the rent to market rates whenever a tenant moves out. State law requires all rent control ordinances to provide for "vacancy decontrol" (Civ. Code Section 1954.53), so we might be seeing a lot of these "wrongful eviction" suits.

Peter: So there's no way to get them out?

Larry: Sorry, I guess not -- wait a minute! I missed one of the misbehaviors: "failure to cure a breach of the rental agreement, pursuant to a notice required by Code of Civil Procedure Section1161, subsection 3."

Peter: What does that section say?

Larry: CCP Section 1161(3) allows the owner to give a written notice to the tenant demanding that he cure any breach within three days or get out. If the breach isn't curable, then the notice can simply demand that they get out in three days.

The Landlord: Does it apply to breaches of oral agreements as well as written leases?

Larry: Sure does.

The Landlord: Then we have them! They promised not to eat the fruit of the tree of knowledge, and they breached their promise!

Larry: OK. I'll put together a notice, Boss.

Scene IV: Bernie's Office

Bernie (reading the notice and frowning): Hmm. How did you get this?

Eve: It fluttered down from Heaven, right into my hands.

Bernie: Ha! Just as I expected. Improper service. I knew that shyster Larry when he was down here. He's a walking malpractice case.

Adam: What's wrong with the way we got it?

Bernie: There's three ways they can serve it. Code Civ. Proc. Section 1162. First, they can give it to you personally. I'm not sure that dropping it from the sky into your hands qualifies. So far, the courts haven't passed on that one. Second, if you're not at home or where you work when they try to serve you, they can leave it with someone and mail a copy, but they didn't do that. And third, if those ways don't work, they can nail the notice to the premises and mail you a copy. But they didn't do that either.

Adam: So we can ignore the notice?

Bernie: No. Since you actually received the notice, it doesn't matter if they did a lousy job of serving it. See Calif. Eviction Defense Manual, 2nd Ed., Section 8.11. You should have let it fall to the ground and walked away from it.

Eve: I thought I read somewhere that it doesn't matter if you get it. Lousy service is lousy service.

Bernie: That's the rule for service of a summons. Taliaferro v. Hoogs, 219 Cal. App. 2d 559 (1963).Courts are pretty tough on that, because proper service of summons is necessary to give the court jurisdiction over the defendant. But service of a notice is different.

Adam: So we're stuck.

Bernie: Not necessarily. Let's take a look at this notice:

NOTICE TO QUIT

To Adam and Eve, tenants in possession of 123 Garden St., Eden:

Within 3 days after service of this notice, you must vacate the premises. Your failure to do so will cause the owner to initiate legal proceedings against you to recover possession and obtain a forfeiture of your rental agreement. The reason for this notice is that you are in breach of your rental agreement, in that you agreed not to pick any fruit from the Tree of Knowledge of Good and Evil, and yet you picked an apple.

You may contact the Eden Rent Stabilization Board at 456 Paradise Drive for further information on your rights as a tenant.

Date: March 5, 6,789 B.C.

Signed:

The Landlord

Eve: So? Should we move out?

Bernie: Just sit tight, Eve. If they try to sue on this, we'll wipe the floor with them. 