The eviction

Scene V: Bernie's Office, a week later

Eve: (handing Bernie a summons and complaint): Now we're being sued! And this time he served us properly. An angel handed the papers to us.

Bernie: Was he 18 or over? Code Civ. Proc. Section 414.10.

Eve: How should I know? Do angels have birthdays?

Bernie: Never mind. Let me read the complaint. [He reads it.] Pretty straight-forward. It alleges that you have a month-to-month rental agreement, that you promised not to pick the fruit, and you breached by picking an apple. It attaches and incorporates the Notice to Quit, and alleges you failed to get out. And the complaint is verified, just as the law requires for eviction complaints. Code Civ. Proc. Section 1166.

Eve: So what now?

Bernie: We have some choices. If the complaint fails to state a cause of action, we can demur. This complaint incorporates the notice, so if the notice is invalid on its face, we can demur to the complaint. And because this is an unlawful detainer action, we have another way to attack the complaint -- we can file a motion to quash the summons. See, in unlawful detainer, the landlord is allowed to use a special summons which gives you only five days to answer, instead of the usual 30 days. Code Civ. Proc. Section 1167. So if the complaint fails to state a cause of action in unlawful detainer, the five-day summons shouldn't have been used. Delta Imports v. Municipal Court, 146 Cal. App. 3d 1033 (1983).

Adam: If the notice is bad on its face.

Bernie: Right. And this one might be, for a couple of reasons. First, if a breach is curable, the notice has to give the tenant the alternative of curing it in three days, and moving out if it isn't cured. Feder v. Wreden Packing & Provision Co., 89 Cal. App. 665, 671 (1928). This notice doesn't give you the alternative.

Eve: But how could we cure picking an apple?

Bernie: Couldn't you graft it back on the tree, like with Scotch-tape maybe?

Adam: Bernie, it's got two bites in it. Don't be ridiculous.

Bernie: All right, all right. Look, a tenant's lawyer has to be creative.

Eve: You said you have a second argument?

Bernie: Yeah. The law says that the breach must be "material." McNeece v. Wood, 204 Cal. 280 (1928); Keating v. Preston, 42 Cal. App. 2d 110, 118 (1940). The courts don't like to kick people out of their homes for trivial breaches. The notice doesn't say that picking just one little apple hurt the Landlord's interests in a material way. The Landlord will have to prove materiality at trial, but I'm not sure the law requires Him to say that in the notice. But it's worth a try.

Adam: OK, but how should we attack it, by demurrer or by motion to quash the summons?

Bernie: Better go with the motion to quash. There's one case that seems to say you have to do it that way. Delta Imports.

I'm not sure that court wouldn't allow a demurrer instead, but why take a chance?

Scene VI: Bernie's Office, 2 weeks later

Eve: We lost the motion to quash?

Bernie: Yeah. The judge ruled that since the appellate cases don't clearly say that the notice has to allege materiality, she wasn't going to require it.

Eve: So it was all for nothing.

Bernie: Only if you consider two weeks' delay a nothing. With these motions, sometimes even if you lose, you win.

Adam: And now we're finished?

Bernie: Finished? Are you kidding? We're just getting started. Now we file an answer.

Eve: What's that?

Bernie: The answer is where we allege the facts that we claim are the true facts. And that's what gets us a trial -- to decide whose allegations are true. If we don't file an answer in five days, the owner can take your default, and have you kicked out without a trial. Code of Civ. Proc. Section 1167.

Adam: What do we say in the answer?

Bernie: An answer comes in two parts -- denials and affirmative defenses. Denials are usually better, because whatever parts of the complaint we deny, the plaintiff has to prove at trial. We have the burden of proving any affirmative defenses.

Eve: What can we deny?

Bernie: Let's start with His allegation that you agreed not to pick any apples. Did you agree to that?

Adam: Not really. He just told us not to.

Bernie: When you made the original agreement?

Eve: No, He told us later.

Bernie: Aha! So He tried to modify the agreement. He can modify the terms of a month-to-month tenancy, but only by a written 30-day notice stating the modification. Civ. Code Section 827. Since he didn't do that, we deny his allegation that the rental agreement provides that you agreed not to pick any apples.

Adam: Can't we just deny picking the apple? It's just His word against ours.

Bernie: Look, I may be slick, but I'm not unethical. Besides, because the complaint was verified, the answer has to be verified, so you have to swear under penalty of perjury that it's true. Code Civ. Proc. Sections 446, 1166.

Eve: Do we have any affirmative defenses?

Bernie: I guess this is where we raise our materiality issue. Since the complaint doesn't allege that the breach was material and the judge ruled that it doesn't have to allege it, it's up to us to raise it. So we allege that even if there were a breach, it wasn't material.

Adam: Can we do that even if we deny that the agreement was ever modified to forbid picking apples?

Bernie: Sure. You can raise alternative defenses, even if they seem inconsistent.

Eve: What about that implied warranty of habitability you mentioned earlier?

Bernie: Let me think about it. When the Supreme Court adopted the implied warranty, they also dropped the old "doctrine of independent covenants," which said that even if the owner breaches his duty, the tenant still has to perform hers. Green v. Superior Court, 10 Cal. 3d 616 (1974). So now, the owner's compliance with the warranty is a condition precedent to the tenant's duty to perform her duties under the agreement. The duty which usually comes up is the duty to pay rent. So if the owner breaches the warranty, the tenant doesn't have to pay the rent, and when the owner sues to evict for non-payment, the tenant can claim that she doesn't owe the rent. Now, the question is, does this reasoning also apply to other duties of the tenant -- like the duty not to pick apples? Interesting. Let's give it a try.

Adam: So we have a lot of stuff for our answer.

Bernie: Yep. Plus, I've got a little surprise for the Big Guy.

Scene VII: Heaven

The Landlord: A notice to take My deposition! Can they do that?

Larry: Yes Sir. All the usual discovery devices may be used in unlawful detainer cases. Calif. Eviction Defense Manual, 2nd Ed., Section 23.3. They also served us with written interrogatories.

Peter: But how do they have enough time? You said that eviction cases proceed very quickly.

Larry: That's true. They get precedence over other civil cases (Code Civ. Proc. Section 1179a), and the clerk is supposed to set the case for trial within 20 days after the landlord files a memorandum saying that an answer has been filed and the case is "at issue." Code Civ. Proc. Section 1170.5. But a smart tenant's attorney will get started with discovery right away and serve the discovery documents with the answer. Then he can usually get what he wants before trial.

The Landlord: Why does he want to depose Me?

Larry: Three reasons. To find out what Your story is, so he can investigate it and get evidence to rebut it at trial. And to lock You into a certain story, so if You testify to something different at trial, he can use Your deposition to impeach You. And also to get a good look at You, to see what kind of a witness You'll make and whether there's any way to rattle You when you testify at trial.

The Landlord: Where will this deposition take place?

Larry: In Bernie's office. And You'll be placed under oath.

Peter: Under oath? But He's...

Larry: I know. Doesn't matter.

The Landlord: How humiliating.

Peter: How should He appear? He takes many forms on Earth.

Larry: Hm. Let me think -- I got it! How about a burning bush?

Peter: Great! That should keep the deposition short.

Larry: With all those legal papers lying around, Bernie will be afraid his office will burn down.

Peter: Be sure to sit in a wooden chair, Sir.

[Larry and Peter

crack up laughing.]

The Landlord: That's enough, you two. This isn't funny. I sued them, but it feels like they're suing Me. Let's just drop the lawsuit and let them stay. They've learned their lesson. I'm sure they'll behave better in the future. We tried Justice, and it didn't work. Now it's time for Mercy.

Peter (composing himself): I'm sorry, Sir, but it's too late for that.

The Landlord: What do you mean, too late?

Peter: Remember when You told the people to "Go forth and multiply"?

The Landlord: Yes.

Peter: Well, they did. Now they need stuff. We have plans to develop the Garden. A shopping center, parking lots, ranch houses, apartments -- the works. "Eden Acres," we'll call it. We've even lined up an anchor tenant, Goys 'R Us. You'll make lotsa manna from this, Sir. (Calif. Govt. Code Sections 7060-7060.7 (the "Ellis Act") provides that no rent control ordinance may prohibit a landlord from evicting in order to discontinue his business of renting out residential units. The city may provide, however, that if a landlord evicts on this basis and, within a year thereafter, offers the premises for rent for residential purposes, the premises shall again be subject to rent control, the landlord shall be liable to the tenant for actual and punitive damages, and the landlord shall first offer the premises to the evicted tenant. Calif. Govt. Code Section 7060.2.)

The Landlord: Do I look like I need more manna? All Creation is mine! Anyway, what now, Larry?

Larry: We respond to their discovery, I do some discovery on them, and then we go to trial. A jury trial.

Peter: A jury?

Larry: Either side is entitled to a jury trial in an eviction case. Code Civ. Proc. Section 1171. Usually, the tenant wants one and the landlord doesn't.

Peter: Why?

Larry: Juries are usually more pro-tenant than judges are. In most urban areas, a lot of the jurors will be tenants. And anyway, a civil plaintiff needs nine out of 12 jurors to get a verdict, so if the tenant can convince at least 4 of them, he's got a hung jury and we can't evict.

The Landlord: Isn't there any way we can avoid a jury trial?

Larry: There is one way -- a motion for summary judgment. See Calif. Eviction Defense Manual, 2nd Ed., Chapter 22. We submit a declaration, signed by You under penalty of perjury, in which You say what the facts are. Then the tenant is supposed to submit a declaration -- also signed under penalty of perjury -- saying that their version of the facts is true. If they can't do it, the judge will find that there is "no triable issue of fact" and no need for a trial -- so we win.

Peter: But didn't they already deny our facts in their answer?

Larry: Yes, but that's not good enough. An answer is just a technical legal document written by a lawyer. In a declaration, a real person says what really happened.

Peter: Could we win a motion for summary judgment here?

Larry: God knows.

The Landlord: Sorry. I know many things, but how a judge's mind works is well beyond Me.

Larry: Anyway, I'll give it a try.

Scene VIII: Eden County Superior Court

Judge Solomon: Boys, boys. Why fight? Let's just split the Garden in half.

Larry: Not this baby, Your Honor. My Client is entitled to all of it.

Bernie: So's mine.

Judge Solomon: Oh, well, it worked last time.

Bernie: Judge, my client's declaration shows that there are several triable issues of fact here. First, my client says that the original agreement said nothing about picking apples, and the Landlord's later attempt to modify the agreement did not comply with the statute.

Larry: They're lying, Your Honor. My Client's declaration says the original agreement did forbid them from picking apples, and the credibility of my Client is beyond question.

Judge Solomon: Perhaps, but credibility is decided by the jury, not the judge on summary judgment. I'm afraid they've raised a triable issue of fact on this issue, Larry.

Larry: OK, but what about this materiality issue? When I moved for summary judgment, I also moved in the alternative for "summary adjudication of issues." Even if you send this case to trial, you shouldn't let the jury decide materiality, because there's no triable issue of fact on that issue.

Judge Solomon: Why not? Couldn't a reasonable jury find that picking just one apple is a pretty trivial breach?

Larry: But this wasn't just any apple, Your Honor. This was an apple from the Tree of Knowledge. By eating that apple, these mere mortals came to know the difference between Good and Evil.

Bernie: It would be nice if you knew the difference, Counsel.

Larry: What? You tenant-loving scumbag...

Judge Solomon: Now, now. No more of that from either of you, Counsel. Be civilized. This isn't the Middle Ages.

Bernie & Larry: Sorry, Your Honor.

Judge Solomon: Anyway, I think there is a triable issue of fact regarding materiality. I appreciate the force of your argument, Larry, but I'm not the fact-finder here. Materiality is such a vague concept that it should usually be decided as an issue of fact for the jury, not an issue of law for the judge. Superior Motels, Inc. v. Rinn Motor Hotels, 195 Cal. App. 3d 1032 (1987).

Larry: Finally, Your Honor, what about their defense of breach of the implied warranty of habitability? There's no triable issue of fact on that one, because the cases allow that defense only in cases involving non-payment of rent.

Judge Solomon: You're right about what the cases have done so far, but not about their rationale. Those cases are based on the notion that where the landlord breaches the implied warranty, the tenant's duty to perform her covenants is abated until the landlord performs his covenant. Usually, it's the tenant's covenant to pay rent that is the basis for the landlord's suit to evict. But I see no reason why the same approach shouldn't apply when the landlord sues to evict for some other breach of covenant. I hold that there is a triable issue of fact on this one too. The motion is denied in its entirety.

Bernie (bowing): Bless you, O Wisest of the Wise.

Scene IX: Heaven

Peter: A total defeat! I can't believe it.

Larry: Well, I told you it was a long shot.

The Landlord: The trial begins next Tuesday. I'd better send My robe out to the cleaners.

Peter: Don't worry, Sir. It's still a slam-dunk. Once the jury hears You testify, we'll win easily. We'll get Adam and Eve out as soon as the jury comes in with their verdict.

Larry: Um, not quite.

Peter: What do you mean, "not quite"?

Larry: Even if we get a verdict, a lot can happen after the verdict which can delay or even stop the eviction. If the tenant does nothing, we get a judgment, then a writ of possession, which we take to the sheriff's office, and then the sheriff goes out and gives them a five-day notice to get out. Calif. Eviction Defense Manual, 2nd Ed., Sections 28.1-28.8. If they don't get out in five days, the sheriff comes back and throws them out. But usually the tenant does something after the verdict. The tenant may file the usual post-trial motions -- like a motion for new trial or motion for judgment notwithstanding the verdict. And the judge can give them a stay of eviction until those motions are decided. Calif. Eviction Defense Manual, 2nd Ed., Sections 27.2-27.6.

Peter: If they lose the motions, then we get the sheriff on them?

Larry: Not necessarily. They can file a notice of appeal, and the trial judge has discretion to give them a stay of eviction during the appeal (Code Civ. Proc. Section 1176) -- which could take up to a year or so. Usually, the trial judge won't give them a stay unless they pay into court the amount of any costs and damages which might be caused by the appeal, if the tenant ultimately loses. Code Civ. Proc. Section 1176(a); Selma Auto Mall II v. Superior Court, 44 Cal. App. 4th 1672 (1996). And sometimes there's another possibility: an application for relief from forfeiture. Where the judgment forfeits a lease, the trial court has the discretion to relieve the tenant from the forfeiture and keep the tenant in possession, if the tenant can show hardship. Code Civ. Proc. Section 1179; see also Calif. Eviction Defense Manual, 2nd Ed., Section 27.27-27.32.To get this relief, the tenant will have to pay any money damages and costs in the judgment, and comply with any additional conditions imposed by the judge. (Damages allowed in unlawful detainer usually consist of the "reasonable rental value" of the premises during the period of illegal holdover, i.e., after expiration of the notice. Flournoy v. Everett, 51 Cal. App. 406 (1921). Unpaid rent is recoverable only if the action was based on nonpayment of rent. Castle Park No. 5 v. Katherine, 91 Cal.App.3d Supp. 6 (1979). See also Calif. Eviction Defense Manual, 2nd Ed., Section 27.29)

Peter: But they don't have a lease.

Larry: True, they have only a month-to-month rental agreement. But in a city that has rent control, that's pretty much as good as a lease, because the landlord can't evict without good cause. Maybe some court will allow such a tenant to use this relief from forfeiture procedure. Who knows? I wouldn't put it past Bernie to try it.

Peter: OK, let's assume the worst, and the jury rules for them. People like them will probably screw up again later. They'll break a limb off the tree, or forget to make a homage payment or something, and then we can evict them.

Larry: Even if they do screw up later, their victory in this case will make it harder to evict them in a later case. The rent control ordinance allows the owner to claim "good cause" to evict only if he does so "in good faith." If they show that you're trying to evict just because you lost the last case, that's probably not "good faith." Also, under state law, you can't "retaliate" against a tenant because of the tenant's exercise of his lawful rights. Civ. Code Section 1942.5(c). So if they can show you are bringing the new case because the tenant defended and won the old case, they'll win.

Peter: What if we win this case but they get relief from forfeiture?

Larry: Then we should win the second case. Relief from forfeiture is like being on probation. If they screw up again, the judge probably won't give them a second chance.

The Landlord: I didn't realize that a simple eviction case could turn out to be so complicated.

Larry: That's what all my clients say.

The Landlord: Isn't there some way out of this mess? Let's make them an offer they can't refuse.

Scene X: Bernie's Office

Bernie: Well, folks, ol' Bernie did it again. What a deal!

Adam: What are they offering?

Bernie: This Landlord owns a lot of property. He's got a beautiful condo overlooking the sea in this nice little town up the coast. You get it rent-free for a year. Plus moving expenses.

Eve: And what do we have to do in return?

Bernie: Get out of the Garden within 30 days. And sign mutual releases, so neither party can sue the other over this thing in the future.

Adam: Well, we hate to leave the Garden, but I guess we would have had to eventually, if He's determined to get us out.

Eve: And living under an owner who doesn't like you can be a miserable experience. We might as well take what we can get and leave.

Bernie (rising, shaking hands with them): Right. Now you kids go and have yourselves a wonderful time. Raise a little Cain. I understand there's a lot of real swinging going on in that town.

Eve: What's the name of it?

Bernie: Let's see. Here it is. "Gomorrah." Enjoy!

Scene XI: Heaven

Peter: Thanks, Larry. You did well.

Larry: Hey, just doin' my job, Guys. So, can I stay?

The Landlord: I'm afraid not, Larry. I appreciate your work, but I think you'd fit in better down below. Most of your clients are there, anyway.

Larry: You can't do that, Sir.

The Landlord (turning red): What! You dare to tell Me what I can and cannot do?

Larry: Sorry, Sir. I didn't mean you can't send me away. It's just that you don't want to send me away.

The Landlord: And why don't I?

Larry: Because You need me, Sir -- now more than ever. To help develop the Garden -- You know, Eden Acres? The Garden has been declared a landmark, so You'll need approval from the Eden Aesthetics Commission to change anything. And the neighbors are demanding a one-story height limit. And the Mount Sinai Club is threatening to sue if You don't prepare an Environmental Impact Report. They say that development will wipe out the habitat of the Eden pileated plover, an endangered sub-sub-species. And You'll need to get a subdivision map approved. You'll need building permits. You'll need to negotiate with the City over impact fees. You'll need contracts with builders. You'll need loan documents. You'll need to negotiate leases. You'll need -

The Landlord: Stop! Stop! Are we in Heaven -- or in Hell?

Larry: Oh, this is definitely Heaven, Sir. [Smiling.] At least for lawyers.

-- Curtain --