California Court of Appeal Jun 23, 2017 No. JAD17-06Published
Filed 4/5/17
CERTIFIED FOR PUBLICATION
IN THE APPELLATE DIVISION SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF FRESNO
THE CBM GROUP, INC., ) Sup. Ct. Appeal No. 2599 ) Plaintiff/Respondent, ) Superior Ct. No. 16CECL00668 ) v. ) ) GABRIELA LLAMAS, ) ) Defendant/Appellant. ) ) ) )
APPEAL from a judgment of the Superior Court of Fresno
County, Dale Ikeda, Judge. Reversed.1
Attorneys and Law Firms Marcos Segura, Central California Legal Services, Inc.,
attorney for defendant/appellant Gabriela Llamas.
Michael J. Lampe, the Law Offices of Michael J. Lampe,
attorney for plaintiff/respondent The CMB Group, Inc.
Opinion
Donald S. Black, J. 1 This opinion was originally issued by the court on April 5, 2017. It was certified for publication on May 3, 2017, which is within the time that the appellate division retained jurisdiction. This opinion has been certified for publication in the Official Reports. It is being sent to the Fifth District Court of Appeal to assist the Court of Appeal in deciding whether to order the case transferred to the court on the court‟s own motion under Rules 8-1000 – 8.1018.
I.
INTRODUCTION
In this appeal, defendant/appellant Gabriela Llamas
(hereinafter “appellant”) challenges an unlawful detainer judgment
in favor of plaintiff/respondent The CBM Group, Inc. (hereinafter
“respondent”). The judgment was based on appellant‟s failure to
pay full market rate rent after she failed to complete paperwork
to recertify her application for federal subsidized housing
subdivision (d), does permit termination of the lease for criminal
activity. Again, however, there was nothing in the 60-day notice
that informed appellant that her lease might be terminated based
on any alleged criminal activity.
To the extent that respondent argues that that subdivision
(d) allows termination of the lease without any notice whatsoever
where there is criminal activity, this interpretation would be
inconsistent with the normal notice requirements of unlawful
detainer actions as well as the notice requirement of section
3560.159, subdivision (a). Notably, subdivision (d) does not set
forth a specific procedure for terminating the lease for criminal activity or alcohol abuse. Instead, subdivision (d) incorporates
the language of the lease itself by referencing Code of Federal
Regulations, Title 24, sections 5.858, 5.859, 5.860, and 5.861,
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which indicates that any termination for criminal activity would
still have to be based on violation of the lease terms. Thus, a
termination under subdivision (d) would still be based on a
“material non-compliance with the lease provisions”, and the same
procedures required under subdivision (a) would apply to
subdivision (d) terminations as well. Since the 60-day notice did
not give appellant any notice or an opportunity to cure the
alleged criminal conduct, the trial court erred in relying on the
criminal conduct when it granted judgment in favor of respondent.2
However, respondent argues that, even if the trial court‟s
decision based on the 60-day notice was erroneous, the judgment
should still be affirmed based on the trial court‟s finding that
appellant failed to recertify for the federal subsidy. When it
ruled in favor of respondent, the trial court found that appellant
had not explained why she did not meet with respondent‟s manager
and complete the paperwork to recertify for the federal subsidy
program, and thus the full market rate rent applied and the three-
day notice correctly stated the amount of rent as $1,050 rather
than $25. The trial court acknowledged that appellant claimed
that there should be a reasonable accommodation because she was in
the rehabilitation program, and that she was not able to leave the
program and meet with respondent‟s manager to complete the
paperwork until after the “blackout” period ended. However, the
trial court concluded that she could have arranged a meeting after
the blackout period ended or after she left the program, and that 2 Since we find that the 60-day notice did not give notice that the termination was based on criminal activity or drug use, there is no need to address appellant‟s other arguments, including whether the trial court improperly permitted amendment of the complaint, whether it improperly relied on a misdemeanor plea bargain to establish criminal activity, or whether it improperly relied on speculation to show drug use. -19-
her failure to do so meant that she was not eligible for the
federal subsidy program and thus she was liable for the full
market rate rent.
Yet the trial court‟s findings regarding the appellant‟s
failure to complete the recertification process entirely ignored
the extensive testimony at trial regarding appellant‟s meeting
with Maria Velez in late November of 2015. Even though the
substantial evidence standard is highly deferential, the trial
judge‟s ruling will not be upheld if the trial court failed to
weigh the evidence. (Kemp Bros. Construction, Inc. v. Titan
Electric Corp. (2007) 146 Cal.App.4th 1474, 1477-1478.) “The
[substantial evidence] rule thus operates only where it can be
presumed that the court has performed its function of weighing the
evidence. If analysis of the record suggests the contrary, the
rule should not be invoked.” (Estate of Larson (1980) 106
Cal.App.3d 560, 567.)
Here, the trial court did not discuss, and apparently
completely disregarded, the testimony of both appellant and Ms.
Velez regarding the meeting that took place in late November of
2015 after appellant left the rehabilitation program. According
to Velez‟s testimony, appellant came into her office in late
November and stated that she was there to “do the
recertification.” However, Velez told her that “we would not be
renewing her lease.” “I told her, „Gabby, I spoke to my
supervisor Stacey and we will not be renewing your lease.‟” On cross-examination, Velez testified that she told appellant
that “certification has ended”, and that “we would not be able to
do that” [i.e. recertify appellant]. However, Velez admitted
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that, at the time of the meeting, the deadline to recertify
appellant had not yet passed, and that appellant still had about
two months left to recertify. Velez then clarified that she told
appellant that respondent would not be renewing her lease due to
another incident that was not the basis of the unlawful detainer
action. Velez testified on redirect that she never told appellant
that she would not be recertified, only that respondent would not
renew her lease.
Appellant then took the stand and testified that she went to
meet with Velez “around November 24th” after she had been released
from the rehabilitation program to discuss recertification. She
told Velez that she was there to do her recertification, and Velez
told her that they were not going to be recertifying her. Velez
later stopped working for respondent, and there was no manager on
the premises, so appellant had no one to contact regarding
recertification. Appellant finally spoke with Stacey Smith on
January 4, 2016. Smith also told appellant that respondent would
not be recertifying her, and she refused to accept appellant‟s
offer to pay $25 in rent under the subsidized rate. Instead, she
insisted on payment of the full market rate rent of $1,050.
Thus, while there was some conflict between Velez‟s testimony
and appellant‟s with regard to the issue of whether Velez refused
to recertify appellant for the subsidy program or whether she
simply refused to renew her lease, there is no dispute that
appellant did come into Velez‟s office in late November of 2015, before the recertification period had expired, and attempted to
complete the recertification process. The trial court‟s finding
that appellant had not made any attempt to meet in person with
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respondent‟s agents to complete the recertification process
entirely disregarded all of this evidence, and failed to engage in
any weighing of the conflicting statements of Velez and appellant
on the key issue of whether appellant was allowed to recertify for
the subsidy. Therefore, even under the deferential substantial
evidence standard, the trial court‟s finding was unsupported by
the evidence, which clearly showed that appellant had made an
attempt to meet in person with Velez and complete the
recertification paperwork.
Respondent claims that Velez simply told appellant that
respondent would not be “renewing” the lease, not that it would
not be “recertifying” her for the subsidy program. Respondent
contends that, even if Velez told appellant that her lease was not
going to be renewed, appellant should still have made further
attempts to complete the recertification. However, the trial
court never addressed this conflict between the testimonies of the
two witnesses, or even acknowledged that there was any testimony
about the meeting, so the court never resolved the question of
which statement was more credible or whether respondent refused to
recertify appellant for the subsidy program or simply refused to
renew her lease.
In any event, even assuming that the trial court impliedly
found that Velez‟s testimony was more credible and that respondent
simply refused to renew appellant‟s lease, the refusal to renew
appellant‟s lease was sufficient to justify appellant‟s failure to complete the recertification paperwork. In light of Velez‟s
statement that respondent was not going to renew appellant‟s
lease, given just after appellant came into her office and stated
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that she wanted to do the recertification paperwork, it would have
been a futile act for appellant to insist on completing the
recertification. What would the purpose of further efforts to
complete the recertification process have been if respondent
refused to allow appellant to renew her lease? Without an
apartment to rent, appellant‟s completion of the recertification
for the subsidy would have accomplished nothing. Regardless of
whether Velez told appellant that she was not going to allow her
to recertify or whether she told her that respondent was not going
to renew her lease, the effect was the same: appellant would not
be able to continue living in the apartment.
Therefore, we find that there was no substantial evidence to
support the trial court‟s conclusion that appellant had not
offered any explanation for her failure to complete the
recertification process.
IV.
DISPOSITION
The judgment awarding possession of the premises to
respondent as well as the award of money damages against appellant
is reversed. The matter is remanded back to the trial court, with
directions that judgment is to be entered in favor of appellant.
Dated this ___ day of May, 2017
_____________________________________ Hon. Donald S. Black, Presiding Judge Appellate Division of Fresno Superior Court
WE CONCUR:
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_____________________________________ Hon. F. Brian Alvarez, Judge
_____________________________________ Hon. Gary D. Hoff, Judge
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AI Brief
AI-generated · verify before citing
Holding. The court held that the unlawful detainer judgment was unsupported because the landlord failed to provide the tenant with proper notice of the specific grounds for termination, specifically regarding alleged criminal activity and drug use.
Issues
Whether the 60-day notice was sufficient to support an eviction based on criminal activity or drug use when it did not explicitly cite those grounds.
Whether the trial court erred by reopening the case on its own motion to consider evidence of lease violations not alleged in the notice or complaint.
Whether the landlord complied with federal regulations requiring notice and an opportunity to cure lease violations prior to termination.
Disposition. reversed
Quotations verified verbatim against the opinion
“the 60-day notice did not mention that appellant was going to be evicted for either using illegal drugs or engaging in criminal activity on the premises.”
“it would not be fair to require a tenant to guess as to the underlying reasons for the termination of the lease”