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Davis v. California Culinary Academy, Inc.

California Court of Appeals, First District, Second Division
Sep 15, 2008
No. A117310 (Cal. Ct. App. Sep. 15, 2008)

Opinion


JAMES E. DAVIS, Plaintiff and Appellant, v. CALIFORNIA CULINARY ACADEMY, INC., Defendant and Respondent. A117310 California Court of Appeal, First District, Second Division September 15, 2008

NOT TO BE PUBLISHED

San Francisco County Super. Ct. No. CSC-05-446003

Kline, P.J.

Appellant, James E. Davis, lived in a building located in San Francisco owned by respondent California Culinary Academy, Inc. (CCA) that was primarily as a residential facility for CCA students. Others, such as appellant, who were not students but resided in the building at the time it was acquired by CCA, were permitted to retain their tenancies. After receiving information that appellant had raped one of its female students who also lived in the building, CCA personally served appellant with a three-day notice to quit the premises, with which he complied. A police investigation of the alleged rape was conducted, but criminal charges were never filed against appellant.

On October 24, 2005, nearly one year after he received the notice to quit, appellant filed a complaint against CCA for wrongful eviction and making other legal claims. After the parties conducted discovery, CCA moved for summary judgment. The trial court granted the motion and on that basis entered judgment against appellant. This appeal followed.

We shall affirm the judgment.

FACTS AND PROCEEDINGS BELOW

In 1999, when he was 19 years of age, appellant moved into Room 315 of the building at 626 Polk Street, which was at that time a “residential hotel.” Initially, appellant shared the room with his father, a San Francisco Muni driver, who began renting the room in 1995. When CCA purchased the building in 2002 as a residence for its students, it permitted appellant and his father and some other existing tenants who were not its students to continue living in the building. Appellant paid CCA monthly rental payments of $420 for his rent-controlled room, which was less than the amount CCA charged its own students for comparable rooms, which many shared. In 2004, while his room was being painted, appellant moved into Room 305, which was larger and, unlike Room 315, had a separate bathroom. After the painting was completed, CCA allowed appellant to remain in Room 305 at the same rent.

In a declaration submitted in opposition to CCA’s motion for summary judgment, appellant stated that he met Deanna R. in the television room in the lobby of the building in September 2004. At that time Deanna was 18 or 19 and appellant was 25. According to appellant, Deanna “was friendly and flirtatious, unattached and available.” Shortly after they met, appellant invited Deanna to his room to watch a movie. She had to leave when the movie was over, but assertedly invited appellant to come to her room that evening. Appellant stated that “[w]e had consensual sex in her room that evening, and she did not appear to require that I be her boyfriend or even date her in order to have casual sex with her. [¶] I believe Deanna [R.] knew that I had a girlfriend, because I was frequently with my girlfriend in Deanna’s presence. Yet [she] continued to flirt with me and my buddies.” Appellant stated that his second sexual encounter with Deanna “was also consensual and took place in the afternoon in her room about two or three weeks later. I just dropped by for a visit. Again, it appeared to me that she considered me ‘a friend,’ and she evidently did not mind having casual sex with men without ‘dating’ them or having any serious commitment.” Appellant stated that during September and October 2004 he had consensual sexual intercourse with Deanna on three separate occasions.

The last of these occasions took place in appellant’s room. As appellant describes the event, he visibly used a condom and Deanna never got angry or indicated he should stop but instead embraced and kissed him. At some point, the condom broke and appellant “panicked.” Because this event “interfered with the moment,” he and Deanna stopped having sex and went to her room, where they found their mutual friend Derek Wilson. The three ate candy and “hung out.” During this time Deanna was being affectionate and tried to sit on appellant’s lap. However, appellant was “preoccupied and worried about that condom breaking, and the potential trouble I could get into with my girlfriend by having sex with another woman and getting her pregnant.” At some point appellant went to a Walgreen’s pharmacy to purchase a “ ‘morning after’ ” pill for Deanna; however, the pharmacist would not sell it to him but only to the woman who was going to use it. When he returned, appellant asked Deanna to purchase the pill. She said she was using birth control and refused, even after appellant gave her the money and insisted she buy the pill. According to appellant, Deanna “looked at me like, ‘you don’t trust me?’ ” Appellant sensed that Deanna got angry and he might have unintentionally insulted her. Appellant’s friend Derek Wilson later told him that he had seen Deanna and a friend leave the building and return with a package from Walgreen’s and that Deanna looked very angry.

A few days later, San Francisco police officers who came to the building looking for appellant told his father that a girl living in the building claimed appellant had raped her. Appellant and his father voluntarily went to the police department, where appellant was interviewed by Inspector Frank Lee. Appellant learned from Lee that Deanna and her parents had told the police that she had been sexually attacked by appellant and that she had never previously had a sexual encounter with anyone and was a virgin. Deanna and her parents initially brought the information to police in San Jose, where the family lived, and that department then passed its report on to the San Francisco Police Department.

According to the San Jose police report, appellant was just a friend Deanna liked to hang out with and never her boyfriend. On the day in question, he invited Deanna to his room to eat some “ ‘hot pockets,’ ” a type of fast food. Immediately after they entered the room she saw appellant take something from a drawer and walk over to her. She “started to get an uncomfortable feeling and told [appellant] ‘let’s go.’ ” Instead, appellant kneeled before her and started kissing her neck. She moved away from him repeating “ ‘stop, let’s go.’ ” Appellant pulled down her sweatpants saying “ ‘come on, I need this.’ ” According to Deanna, appellant pulled down his pants and underpants, placed a condom on his penis, and entered her. Deanna tried but was physically unable to push appellant off because he was too heavy. According to the report, Deanna said she “just layed there while he sexually assaulted her. She stated she ‘froze’ and did not try to scream for help or kick him off. He assaulted her for about 5-10 minutes and finally got off her. When he pulled his penis out of her she noticed that the condom was not on anymore. [Appellant] then stuck his fingers inside her vagina and pulled out the condom. She did not know if he ejaculated until later when [appellant] was worried that he had gotten her pregnant because the condom had slipped off.” The report recounts that appellant then went to a Walgreen’s to buy something. When he returned, he asked Deanna if she was on birth control and she told him she was. He then told her to go the pharmacy herself to buy an emergency contraceptive pill, and gave her the money to make the purchase. He offered to go with her but she said no. “He asked her if she was okay and if she was mad at him. She stated he was acting as if nothing had happened and everything was normal.” Deanna and her friend Celia went to the pharmacy but after she told the pharmacist she was using birth control he told her the emergency pill was unnecessary. Celia told her repeatedly to go to the hospital and report the rape, but she was scared to tell anyone because appellant was her friend. The report states that Deanna “thought because she had not tried to kick him off her and did not scream that people would think she did it voluntarily.”

The next day Deanna and another friend, Sharon, went to Planned Parenthood where Deanna was told to go to San Francisco General Hospital. At the hospital, Deanna was given a SART exam. After she signed a “confidentiality form,” she was told the hospital would not report the incident to the police unless she wanted them to do so and that the hospital would preserve the rape kit for three months. When she went home to San Jose she told her parents what had happened and they called the police. The San Jose police report states that Deanna related only two previous sexual encounters with appellant. The first only involved his unreciprocated attempts to kiss her, which left “hickies” all over her body. During the second, “he kissed her and she kissed him back.” He then tried to pull her pants down, but stopped when a friend walked in. Deanna stated that she and appellant “were just friends and that she did not want or like him as a boyfriend.” She also stated that the rape she reported “was the first time she had ever had sex before.”

Deanna related the foregoing in greater detail at her deposition, at which she explained why she did not immediately go to the hospital and tell her parents what had happened: “I didn’t want my parents to know. I didn’t want anybody to know. I felt dirty, and I just didn’t want anybody to know. I wanted to keep it to myself.” Deanna said she went to the hospital and called her parents the next day only after her classmates, who noticed her uncharacteristic silence and realized something was wrong, insisted that she explain. When she told them of the rape they persuaded her to go to the hospital and talk to her parents.

After receiving the San Jose police report and determining that appellant had no known criminal history, San Francisco Police Inspector Lee interviewed Deanna and appellant on tape and obtained taped statements from Deanna’s friend Celia and from Derek Wilson.

According to Inspector Lee’s report, appellant “admitted having sex with the victim two days ago but said it was consensual. [He] also said the first time he had sexual intercourse with the victim was around the first week in September.” Appellant agreed to and did provide “oral reference swabs.” After making a taped statement (which is not part of the record), Deanna identified appellant from a photospread. During a taped statement also given to Lee, Deanna’s friend Celia stated that Deanna came to her door crying and told her that she had just been raped by appellant. Celia suggested that she go to the hospital for a rape kit but Deanna was then unwilling. Deanna went to the hospital the following afternoon after a classmate, Sharon, urged her to do so after Deanna explained why she was so quiet and had been crying. Appellant’s friend Derek Wilson, who lived across the hall from Deanna, also gave Inspector Lee a taped statement. Wilson said that on the evening in question he was in Deanna’s room with appellant and Deanna. Appellant left the room to get something to eat and Deanna went with him. Later, when the two of them returned, Deanna “did not say anything and was feeding [appellant] Gummy Bears and sitting on his lap.” Derek “said he was surprised to hear that the victim made a sexual assault allegation.”

Inspector Lee’s report states that on October 21, 2004, he contacted Ann Brennan (apparently an employee of San Francisco General Hospital) “to let her know [the] victim will sign a release so they can release the sexual assault kit and the OCJP report to us.” The report ends with Inspector Lee’s statement that on October 23rd “I review[ed] case with [assistant district attorney] Susan Eto and she declined to issue an arrest warrant in this case. DA Discharge Code 24L.” Lee added that he phoned Deanna and advised her of the district attorney’s decision not to charge appellant with a crime.

On October 27, 2004, CCA served appellant with a three-day notice to quit pursuant to section 1161, subdivision (4), of the Code of Civil Procedure. The notice stated: “Your rental agreement is being terminated because, on October 19, 2004, you committed the act of sexual assault at the premises, upon another occupant of the building at 626 Polk Street.” The notice also stated that “your Landlord will commence legal proceedings against you to: (1) Declare a forfeiture of your rental agreement; (2) Recover possession of the premises if you fail to quit the premises within three days after service on you of this notice.” Finally, the notice stated that it ‘complies with San Francisco Administrative Code Chapter 37.9(a)(2) and (a)(3) in that you have breached the implied covenant of quiet enjoyment and committed a nuisance at the premises” and that “[a]dvice regarding this notice is available from the San Francisco Residential Rent Stabilization and Arbitration Board.”

Appellant stated that after receiving the notice to quit he went to Terry Brooks, resident manager of the building for CCA, telling him he did not rape Deanna and asking him to convey this information to the “decision-makers” at CCA. According to appellant, Brooks said he had already spoken with his superiors “about my good character,” but that “CCA wanted to kick me out of the Building because of the crime Deanna [R.] had accused me of, and that they did not want to hear from me.” Brooks also said “CCA did not want to believe me and they just wanted me ‘out’ . . . because I was paying cheap rent.” Brooks assertedly advised appellant to get an attorney “because ‘this was wrong.’ ” CCA objected to the admissibility of the statements Brooks allegedly made to appellant. The trial court sustained the objection on the ground that the statements “are vague, overly broad, conclusory, and unintelligible.” Appellant does not here challenge this ruling, although he does improperly rely on Brooks alleged statements.

Appellant consulted several attorneys, as we later discuss, but he never contacted the Rent Stabilization Board. On October 31, 2004, he moved out of the building, thereby complying with the notice to quit the premises within three days.

Lizzy Francis, the CCA employee who signed the notice to quit, states in a declaration submitted in behalf of CCA’s motion for summary judgment that on an unspecified date in October 2004, Deanna, who was then crying and visibly distraught, informed her that she had been raped by appellant, and had gone to the hospital. Francis advised her to report the matter to the police. Deanna returned with her mother a few days later and told Francis she had reported the rape to the police department. Francis stated that appellant never contacted her in response to the three-day notice to quit.

Appellant testified at his deposition that he did not inform anyone at CCA (other than Terry Brooks) that he had not raped Deanna and explained that he failed to do so because he was then more worried about the potential criminal charge than the eviction. At the time he received the notice to quit, appellant emphasizes, he was experiencing “severe anxiety about being a black man being prosecuted for the horrific crime of rape and being labeled a sex offender.” Appellant also hoped to enter law enforcement after graduating from City College, where he was studying that subject, and feared that a criminal charge would bar a career in that field. Furthermore, the attorneys he consulted all “told me to handle the criminal case first.” When asked why he could not deal with both the three-day notice to quit and the criminal matter at the same time, appellant responded that he “tried to handle it the best way that I possibly could.” He contacted Legal Aid and other attorneys and “they never told me that it was a process. And as the days were getting shorter, I just packed up and left.” Appellant spoke with “a bunch” of lawyers, but none told him and he never inquired how much they would charge to represent him in connection with the notice to quit. No attorney he spoke to told him whether he should move out or stay and he never inquired about that; “they just told me [to] handle the criminal case.” Appellant acknowledged that the notice informed him that advice was available from the Rent Stabilization and Arbitration Board, but noted that the notice failed to provide the Board’s telephone number or address.

When asked by counsel for CCA what he thought “would have been an adequate investigation” of Deanna’s charges by CCA—i.e.,”[w]hat would have been fair?—appellant stated that all they needed to do was contact the police department and wait for the results of its investigation before seeking to evict him. At the very least, appellant said, they should have questioned him and others, such as Derek Wilson, who saw him and Deanna together immediately before and after the alleged rape, and also to “check our background history.” When asked whether CCA had “done a thorough investigation and still believed [Deanna], would that have still been a fair investigation in your mind?” appellant responded “no,” because that would have been inconsistent with the police investigation and the district attorney’s decision to dismiss the criminal case.

Appellant’s complaint, which was filed on October 24, 2005, nearly a year after he vacated his room, sets forth eight causes of action: (1) wrongful eviction in violation of section 37.9 of the San Francisco Rent Ordinance (section 37.9); (2) constructive eviction; (3) breach of contract; (4) breach of the covenant of good faith and fair dealing; (5) deprivation of peaceful possession of real property; (6) violation of Business and Professions Code section 17200; (7) breach of the covenant of quiet enjoyment; and (8) intentional infliction of emotional distress. The allegation at the heart of the complaint is that “[a]t no time did [CCA] ever investigate [Deanna’s] allegations, contact Plaintiff, or the police to [elicit] the facts or get Plaintiff’s side of the story (or even [Deanna’s] story for that matter).” The complaint also alleges that as a direct and proximate cause of CCA’s actions appellant was injured in several ways. He was unable to obtain rental housing in San Francisco he could afford and was obliged to accept housing in southern Alameda County at a higher rental than he paid CCA, and he was required to commute to his classes at City College and job in San Francisco. As a result of the stress caused by his eviction, appellant allegedly lost his hair and suffered a neurological seizure. Due to the danger of another seizure, his physician and the Department of Motor Vehicles would not allow him to drive.

On June 29, 2006, CCA filed a motion for summary judgment. After obtaining a continuance to conduct additional discovery, appellant filed his opposition on November 29, 2006. The trial court granted summary judgment on January 24, 2007. Judgment in favor of CCA was entered on February 13, 2007, and appellant filed notice of this appeal on March 23, 2007.

DISCUSSION

A.

Appellate review of a summary judgment is limited to the facts shown in the supporting and opposing affidavits and deposition testimony and facts admitted and uncontested in the pleadings. In deference to the strong public policy favoring trial on the merits, a reviewing court is bound by the same principles governing the trial court’s determination: the moving party’s papers are strictly construed and the opposing party’s papers are liberally construed. All doubts as to the propriety of granting the motion—that is, whether there is any disputed issue of material fact (Code Civ. Proc., § 437c)—are to be resolved in favor of the party opposing the motion. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) The grant and denial of summary judgment are both subject to de novo review to determine whether triable issues of material fact exist. (Wiener v. Southcoast Childcare Centers, Inc., at p. 1142.)

B.

In its written order granting summary judgment, the trial court pointed out that the gravamen of appellant’s “entire suit and all causes of action alleged therein is whether [CCA] had a good faith basis to serve the notice to quit on Plaintiff, and thereby begin the process of instituting an eviction proceeding.” “Essentially,” the court stated, “this case turns on whether [CCA] has shown evidence of a good faith basis to serve the notice” and if it did, whether appellant submitted evidence negating that good faith basis. The trial court concluded that CCA sustained its burden by establishing that it served the notice to quit on appellant for the reason stated on the face of the notice (his commission of the act of sexual assault on the premises) and did so on the basis of Deanna’s representation that she had been raped by appellant in her room and the emotional distress she was then exhibiting, which lent credibility to her statement, as did the fact that she had reported the matter to the police. On the basis of this showing of apparent good faith and without any reasonable basis for inferring bad faith, the court shifted to appellant the burden of producing evidence that CCA lacked good faith, and concluded that he failed to sustain his burden.

Appellant contests the court’s determination that he failed to provide evidence that CCA acted in bad faith on the basis of an erroneous conclusion that CCA “had no duty to investigate whether bona fide grounds for terminating the tenancy existed, or act[ed] reasonably under the circumstances, so long as [CCA] subjectively believed them to be true.” At the very least, he claims, there is a triable issue as to whether CCA acted in good faith.

According to appellant, “the trial court ignored Appellant’s circumstantial evidence pointing to [CCA’s] state of mind because it obviously fell short of proving that [CCA] subjectively knew that Appellant did not rape [Deanna], but it terminated his tenancy anyway.” Relying on Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415 (overruled on other grounds in McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 846, fn. 9), appellant stresses that direct evidence of state of mind is ordinarily unavailable, and the trier of fact is required to draw inferences of state of mind from the sort of circumstantial evidence he claims he provided. In appellant’s view, CCA did no more than “profess” its good faith, which did not suffice to shift the burden to him, but that he “nonetheless provided circumstantial evidence from which strong inferences of [CCA’s] decision-maker’s state of mind . . . could suggest lack of good faith . . ., particularly evidence showing: [CCA’s] unreasonable omissions, inaction, unfair dealing, evasion of the spirit of the parties’ rental agreement, lack of diligence and slacking off in any investigation, abuse of a power, lack of moral quality, and unfaithfulness to duty.” Appellant says that “though not overt, all of these constitute lack of good faith” and the issue should therefore have been presented to a jury. As appellant sees it, the dispositive fact is that he “did not rape another tenant . . . and [after] a thorough police investigation, he was never charged with a crime.” Accordingly, he concludes, he “was wrongfully and constructively evicted by [CCA’s] unreasonably and willfully disturbing his tenancy.” Appellant ignores the quality of CCA’s evidence, exaggerates the significance of the evidence he relies on, and misapprehends the law as to CCA’s duty to investigate.

Widener v. Pacific Gas & Electric Co., supra, 75 Cal.App.3d 415, was a suit by a film producer who was a public figure against a public utility and its employee for libel, based on the employee’s circulation of a letter charging the producer with a gross breach of journalistic ethics regarding an antinuclear documentary film. Discussing the “actual malice” requirement, the Widener court stated that “[t]he mere profession of a defendant that he believed in good faith that his statements were true does not automatically entitle him to a verdict in his favor,” and that “ ‘[a]s in all cases . . . turning upon the state of an individual’s mind, direct evidence may be rare; usually the trier of fact is required to draw inferences of the state of mind at issue from the surrounding acts, utterances, writings or other indicia.’ [Citation.]” (Id. at p. 435.)

Appellant claims that “[t]riable issues of material fact and questions of law exist as to (1) whether Appellant moved out voluntarily, (2) whether Appellant was legally ‘constructively evicted,’ (3) whether [CCA] acted in good faith and with probable cause in terminating Appellant’s tenancy using the ‘reasonably prudent lessor’ objective standard (knowing what it knew under the circumstances)—and not a subjective standard, (4) whether [CCA] had a legal duty to investigate the grounds for eviction and truth of its purported grounds for terminating Appellant’s tenancy, and (5) whether [CCA’s] failure to investigate and reliance on only [Deanna’s] story indicate that it had serious doubts about the truth of the allegations published in the notice to quit, and amounted to actual malice.”

The central issue in this case is not whether appellant raped a tenant, but whether at the time it issued the notice to quit CCA harbored a good faith belief that he had done so. The trial court did not find that CCA acted in good faith simply because it said it did, but on “ ‘the surrounding acts, utterances, writings, or other indicia.’ ” (Widener v. Pacific Gas & Electric Co., supra, 75 Cal.App.3d at p. 435) As we have said, CCA relied on Deanna’s statement to Lizzie Francis that she had been raped by appellant in her room, as well as her emotional distress at the time and Francis’s knowledge that Deanna had conveyed her rape charge to the police and others, including her parents, all of which lent credibility to her charge, as well as the statement on the notice to quit explaining that CCA was terminating the rental agreement because “you committed the act of sexual assault on the premises,” which is fully consistent with Deanna’s representations to Francis and others.

Moreover, as the trial court correctly pointed out, in the absence of an adequate evidentiary showing of bad faith, the giving of notice terminating a tenancy followed by the voluntary surrender of the premises cannot be deemed a wrongful eviction and does not provide grounds for such a cause of action or a cause of action for constructive eviction. (Lindenberg v. MacDonald (1950) 34 Cal.2d 678, 683; Dickenson v. Samples (1951) 104 Cal.App.2d 311, 316.) Nor does it provide grounds for an emotional distress claim, because a good faith termination does not “exceed[] all bounds of decency usually tolerated by a decent society.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 617.) Whether an effort to terminate a tenancy was made in good faith may or may not be a question of fact for the jury to decide, depending upon the state of the evidence. (Lindenberg v. MacDonald, at p. 684.)

The crucial question is whether appellant produced evidence from which the trial court could reasonably infer that, at the time it served the notice to quit, CCA lacked a good faith belief that appellant had raped a tenant, so that there is a triable issue as to this material fact. Appellant finds such evidence in two factors: CCA’s failure to investigate the validity of Deanna’s rape claim, and its economic interest in the termination of his tenancy, which would enable CCA to rent his room to its students at a higher rental than appellant paid. The trial court rejected both contentions. As to CCA’s alleged duty to investigate, the court stated that appellant “did not have a right, contractual or otherwise, to require [CCA] . . . to investigate or prove to any degree of certainty the truth of [Deanna’s] charges prior to . . . serving the notice to quit, during which they could have been litigated.” With respect to CCA’s alleged economic interest in appellant’s departure, the court stated that “[t]here is simply no evidence in the record of any other motive of [CCA] in issuing the notice other than responding to the rape charge. Further, the possibility that CCA may at some future time have been able to rent the unit for more than what [appellant] was paying does not create a triable issue of fact, even if [appellant] presented admissible evidence so demonstrating, which [appellant] has not.” The court’s findings are supported by the record and the law.

1.

Appellant’s contention that the implied covenant of good faith and fair dealing imposed upon CCA a duty to investigate the bona fides of the rape charge rests primarily on Guntert v. City of Stockton (1974) 43 Cal.App.3d 203 (Guntert I), which he describes as the leading California case on a landlord’s duty to inquire into the validity of the facts upon which it proposes to terminate a lease. In Guntert I, the plaintiffs operated an industrial facility on land rented from a city under a lease containing a clause permitting termination when and if the city decided to accept a bona fide development offer from third parties. After receiving notice of termination under that clause, the plaintiffs filed suit charging that the notice was invalid because the city lacked information necessary to determine that the third party developer had the financial means to carry out the proposed development. The trial court found that the city breached its duty to inquire into the bona fides of the third party’s development offer and enjoined the dispossession of the plaintiffs, and the Court of Appeal affirmed.

The chief issue in the case was the meaning of the termination clause, which “empowered the city to act when it received a ‘bona fide offer’ to develop the property; invested the city council with ‘sole discretion’ to determine the offer’s ‘validity,’ its economic feasibility and the developers’ ability to finance the project.” (Guntert I, supra, 43 Cal.App.3d at p. 210.) The city maintained that the phrase “sole discretion” necessarily implied arbitrary power, “unfettered by the demand for reasonableness.” (Id. at p. 213.) The Court of Appeal disagreed. Because the language of the termination clause was susceptible of different meanings, the court looked to extrinsic evidence relating to the bargaining between the parties to protect their discordant interests. “To promote the possibility of an urban commercial development . . ., the city officials wished maximum freedom to terminate Guntert’s industrial operation. To abet retention of his industrial site, Guntert needed restrictions upon the city’s power to terminate; specifically, he needed protection against the risk that he might be ejected for the sake of an ephemeral scheme from promoters without reasonable ability to finance it.” (Ibid.) Like the trial court, the Court of Appeal interpreted the contract to impose the “reasonable person” standard on the city council. Because “city officials had before them no information permitting a reasonable determination that [the third party developer] possessed [the] ability to finance its proposed development,” the court concluded that the city’s termination of the plaintiffs’ lease “was unreasonable and arbitrary.” (Id. at p. 216) Because the city council’s decision was invalid, the notice of termination of the plaintiffs’ lease was “void.” (Id. at p. 217.)

Guntert I, supra, 43 Cal.App.3d 203 does not stand for the proposition for which appellant advances it; namely, that all landlords have a duty to investigate or prove the truth of information causing them to commence efforts to terminate a lease. Indeed, the court that decided Guntert I also decided the related and identically captioned appeal in Guntert v. City of Stockton (1976) 55 Cal.App.3d 131 (Guntert II), in which it indicated that where, as here, a tenant quits the premises and sues for wrongful eviction, the rule that holds sway is that the “notice of termination . . . is not actionable unless characterized by bad faith or malice.” (Guntert II, at p. 141, citing Lindenberg v. MacDonald, supra, 34 Cal.2d 678, 683; Black v. Knight (1917) 176 Cal. 722, 726; and Asell v. Rodrigues (1973) 32 Cal.App.3d 817, 824-825.)

Unlike the defendant in Guntert I, supra, 43 Cal.App.3d 203, CCA is not subject to a bargained for termination clause and appellant does not base his claim on any provision of the rental agreement, which has not been made a part of the record. Further, as Guntert I explains, reasonableness and good faith are dissimilar qualities. A decision lacks reasonableness if it is arbitrary, as when it is “capricious” or “when the facts do not reasonably justify the conclusion. [Citation]. [¶] Good faith, in contrast, suggests a moral quality; its absence is equated with dishonesty, deceit or unfaithfulness to duty. . . . The two qualities may exist in parallel, but the latter is not the necessary product of the former.” (Id. at p. 211) Appellant’s heavy reliance on the applicability of the objective reasonable person standard implicitly concedes that, as the trial court properly concluded, CCA’s conduct has not been shown to be the product of bad faith.

Moreover, as CCA points out, to the extent appellant relies upon the subjective state of mind shown by Lizzy Francis’s failure to investigate, his argument is undermined by Asell v. Rodrigues, supra, 32 Cal.App.3d 817, which he unjustifiably relies upon. There the court held that a tenant could not recover on a cause of action for wrongful eviction unless he proved “both malice and want of probable cause” on the part of the landlord. (Id. at p. 825.) The court then went on to state that “[a]lthough malice may be inferred from want of probable cause [citation], such an inference does not arise as a matter of law, otherwise the two concepts become synonymous. We can easily hypothesize a situation where a landlord subjectively in good faith believes that the tenant has breached the lease, yet under an objective standard lacks reasonable cause to believe such to be the fact. Conceptually, an unreasonable landlord may be acting in good faith and without malice when he serves a notice to quit” (ibid.), so that a claim for wrongful eviction would fail as a matter of law.

Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578 (Andrews), which appellant also relies upon, is also inapposite. There lessees of a space at a mobilehome park sued the park owner for, among other things, breaching the lease by failing to take action against one Molyneux, the lessee of an adjacent space in the park who repeatedly harassed the plaintiffs and subjected them to verbal abuse. In granting summary judgment for the defendant, the trial court concluded that the park owner did not owe the lessees a duty to evict Molyneux. In reversing that ruling, the Court of Appeal held that a mobilehome park owner cannot disregard conduct by a tenant upon the park premises that constitutes a substantial annoyance to other homeowners or residents. The park owner as a matter of law owed the lessees a contractual duty to preserve their quiet enjoyment. The court emphasized that in the lease agreement the park owner “explicitly undertook to protect the Andrewses’ quiet enjoyment of the premises” by promising “ ‘[w]e will try to maintain the peace and quiet’ ” (id. at p. 590), and also that the Mobilehome Residency Law (Civ. Code, § 798 et seq.) expressly preserved the park owner’s ability to secure the quiet enjoyment of their tenants by authorizing the owner to pursue eviction or injunctive relief against offending tenants. The court determined that there were triable issues of fact as to whether the park owner breached its obligation under the lease to preserve the lessees’ quiet enjoyment. (Id. at pp. 591-595.) The court also concluded that the trial court did not err in granting the park owner summary judgment on the negligence claim. (Id. at pp. 595-596.) The court explained that unlike the situation in Madhani v. Cooper (2003) 106 Cal.App.4th 412—where it was foreseeable that a tenant’s “repeated acts of assault and battery” against the plaintiff and her mother would eventually result in serious injury to the plaintiff—it was not foreseeable that the acts of Molyneux, which consisted only of “harassment, verbal insults and annoyances” (id. at p. 596), would foreseeably result in physical injury to the Andrewses. Thus the court concluded that “there was an insufficient showing here to put defendants on notice of Molyneux’s propensity for violence.” (Id. at p. 596.)

In concluding its opinion, the Andrews court observed that “the covenant of quiet enjoyment requires a reasonable response by the landlord, which may include conducting an investigation and thereafter, taking appropriate action, which may include, inter alia, the issuance of a warning to the offending party, the pursuit of injunctive relief against the tenant to enjoin the violation [as specifically authorized by the Mobilehome Residency Law, Civ. Code, § 798.88.], or, if necessary, the commencement of eviction proceedings (id., § 798.56).” (Andrews, supra, 125 Cal.App.4th p. 597, italics added.) Appellant seizes upon the words we have italicized, but to no avail. Andrews hardly declares a legal rule requiring a landlord to conduct an investigation before serving a notice to quit upon a tenant believed in good faith to have committed a violent crime in the rented premises. The beneficiary of the duty imposed in Andrews is a tenant offended by the conduct of another tenant, not the offending tenant. Finally, as Andrews itself makes clear, the foreseeability that a tenant claimed by another resident of the building to have sexually assaulted her may repeat that conduct does not depend on whether the alleged assaulter was actually charged with a crime.

As earlier noted, Lizzy Francis, who signed the notice to quit on behalf of CCA, had been informed by Deanna that she had been raped by appellant. Deanna was at the time in the presence of her mother and visibly distraught. Ms. Francis also knew Deanna had gone to San Francisco General Hospital for a rape examination and had reported her charges to the police. These facts support Deanna’s credibility and also Ms. Francis’s subjective good faith belief that Deanna was telling the truth. And this is true even if, under an objective standard, Ms. Francis may not have had reasonable cause to believe that the alleged rape actually occurred. Good faith may also be inferred from the risk to which CCA was exposed as a landlord by the facially authentic information imparted by Deanna. While it would have been entirely reasonable for CCA to conduct an investigation of Deanna’s charges or await conclusion of the police investigation before filing a notice to quit, such a course entailed the obvious danger appellant might sexually assault another person on its premises before the conclusion of a full investigation. In that event, a delay in moving to evict appellant would also expose CCA to a stronger premises liability claim by the new victim than would otherwise have been the case, because of the foreseeability of her injury. The justifiable desire to protect other tenants and itself provide a good faith basis for serving appellant the notice to quit.

2.

Appellant contends there is a triable issue as to whether, as he claims, CCA moved to evict him because it desired to rent his unit for a higher amount than he paid, which is bad faith. The claim is untenable. As the trial court correctly pointed out, appellant offered no admissible evidence whatsoever in support of this claim, which is therefore entirely speculative. Indeed, the scant evidence pertinent to this claim appears to contradict it.

As earlier noted, the statement of Terry Brooks (related in appellant’s declaration) that CCA “just wanted me ‘out’ . . . . because I was paying cheap rent” was deemed inadmissible by the trial court. Though appellant now relies on this statement, he never challenged the trial court’s ruling, which we must accept.

In his declaration in opposition to the motion for summary judgment, appellant acknowledges that in 2004, while CCA repainted Room 315, which he was then occupying, CCA moved him temporarily to Room 305. After the repainting of Room 315 was completed, CCA permitted appellant to remain in Room 305 and, though it was larger than his original room and suitable for double occupancy, and had its own separate bathroom, charged him the same low rate he had been charged for Room 315. If anything, this evidence indicates CCA subordinated its economic interest to that of appellant.

Because there is no evidence of bad faith, and the relevant admissible evidence all supports the inference that CCA acted in good faith when it served appellant with the notice to quit, we conclude that summary judgment was properly granted.

Our determination that the evidence CCA acted in good faith is undisputed would also support affirming summary judgment on the alternative ground that the notice to quit is protected under the litigation privilege, which applies to a “publication or broadcast” made as part of a “judicial proceeding.” (Civ. Code, § 47, subd. (b).) As stated in Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, a prelitigation communication (such as a notice to quit) is privileged if it is made with a good faith belief that it is true and relates to litigation that is contemplated in good faith and is under serious consideration. (Id. at p. 1251.)

Finally, we would be remiss if we did not point out that CCA did not evict appellant, even constructively, but only commenced a process permitting him to contest termination by demonstrating the factual erroneousness of the statement in the notice to quit that he “committed a nuisance upon the premises” by “committing the act of sexual assault at the premises, upon another occupant of the [premises].” By leaving the premises within three days appellant forfeited the opportunity to promptly refute, if he could, the truth of Deanna’s charge. Appellant’s failure to seek advice from the Residential Rent Stabilization and Arbitration Board, the availability of which was stated in the notice to quit, also undermines the force of his present claims.

DISPOSITION

For the foregoing reasons, appellant has failed to show the existence of a triable issue as to whether CCA lacked good faith or with respect to any other material fact. Accordingly, the grant of summary judgment is affirmed. Costs on appeal are awarded respondent.

We concur: Lambden, J., Richman, J.


Summaries of

Davis v. California Culinary Academy, Inc.

California Court of Appeals, First District, Second Division
Sep 15, 2008
No. A117310 (Cal. Ct. App. Sep. 15, 2008)
Case details for

Davis v. California Culinary Academy, Inc.

Case Details

Full title:JAMES E. DAVIS, Plaintiff and Appellant, v. CALIFORNIA CULINARY ACADEMY…

Court:California Court of Appeals, First District, Second Division

Date published: Sep 15, 2008

Citations

No. A117310 (Cal. Ct. App. Sep. 15, 2008)