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Gandy v. Housing Authority of County of San Diego

California Court of Appeals, Fourth District, First Division
Apr 29, 2009
No. D053616 (Cal. Ct. App. Apr. 29, 2009)

Opinion


JARVIS E. GANDY, Plaintiff and Appellant, v. HOUSING AUTHORITY OF THE COUNTY OF SAN DIEGO et al., Defendants and Respondents. D053616 California Court of Appeal, Fourth District, First Division April 29, 2009

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of San Diego County No. 37-2007-00075213- CU-WM-CTL, Luis R. Vargas, Judge.

HALLER, J.

In this appeal, Jarvis Gandy challenges the trial court's denial of his petition for writ of mandate seeking relief from the decision of the Housing Authority of the County of San Diego (HA) to terminate him from the federal government's Housing and Urban Development (HUD) rental assistance program (known as "Section 8"). He contends the trial court's ruling is not supported by the evidence. We reject his argument and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Section 8 provides rental assistance to low-income families. Under the program, the tenant and the HA each pay a portion of the rent to the landlord. In July 2006 Gandy applied to participate in the Section 8 program, and on August 1, 2006, he signed a lease with property owner Edward Johnson to rent a unit. On May 29, 2007, the HA decided to terminate Gandy's participation in the program based on his violation of the Section 8 "family obligations" by his (1) causing a breach of the housing quality standards by refusing to allow the owner to enter the unit to make repairs; (2) serious or repeated violation of the lease by failing to allow the landlord to enter the unit to make repairs, failing to pay rent, and his eviction from the unit in an unlawful detainer proceeding; and (3) provision of untrue and incomplete information to the HA by stating that his two minor children were living with him.

Gandy requested an administrative hearing to review the HA's decision. At the July 3, 2007 hearing, the parties presented testimonial and documentary evidence to support their positions. The hearing officer sustained the HA's termination decision. Thereafter, the trial court denied Gandy's petition for writ of mandate challenging the termination decision. Gandy challenges this ruling on appeal.

Gandy represented himself during the administrative and court proceedings, including in the current appeal.

Failure to Pay Rent and Allow Entrance for Repairs

At the administrative hearing, the HA presented evidence showing that Gandy was aware of his obligations to pay rent and to allow the landlord to make repairs at the unit, and that his failure to fulfill these obligations could result in termination of his participation in the Section 8 program. The documents provided to Gandy when he applied for the program included advisements that he must comply with the terms of the lease with the owner and with the family obligations of the Section 8 program, and that his failure to do so could cause his participation in the program to be terminated. A family handbook provided to Gandy, as well as a HUD-required addendum attached to Gandy's lease with the owner, states that the tenant must pay the tenant portion of the rent to the owner. Gandy's lease with the owner states that the owner may serve a written notice to pay rent or vacate if the tenant fails to pay the tenant portion of the rent when due. The lease requires the landlord to maintain the unit in accordance with the housing quality standards for the Section 8 program, and provides that the owner or the owner's agent, with notice to the tenant, shall be permitted to enter the unit to make repairs with the tenant's permission and that the tenant may not withhold permission. A voucher signed by Gandy states that the family obligations include a requirement that the tenant not commit any serious or repeated violation of the lease, and the lease states that the owner may terminate the tenancy for serious or repeated violation of the lease. The lease provides that the HA may terminate the tenant's participation in the Section 8 program on any of the grounds authorized in accordance with HUD requirements.

On or about December 15, 2006, property owner Johnson gave Gandy a three-day notice to pay rent or vacate the premises because Gandy had not paid the December rent. When Johnson informed the HA on December 22 that Gandy had not paid the rent, an HA employee called Gandy. Gandy told the HA employee that he was going to pay the December and January rent on January 2, 2007. The HA employee advised Gandy of his obligation to pay the rent on time, and sent him a stipulated agreement that included a warning notice regarding this obligation.

On January 2, 2007, Gandy went to the HA office and stated that he had a right under California law to withhold rent because the owner had not resolved various maintenance problems. Gandy showed the HA employee a notice from San Diego Gas and Electric (SDG&E) dated August 29, 2006, which stated the heater had a defective gas control valve, this was a hazardous condition, and the heater should not be used until the problem was corrected. Gandy also orally advised the HA employee of other problems with the unit.

In accordance with the policies set forth in the HA's Administrative Plan, HA employees explained to Gandy that his decision to withhold rent was not an option under the Section 8 program; that he must pay his portion of the rent and allow the HA to conduct an inspection and give the owner time to make the repairs; and that if he did not pay his portion of the rent his assistance would be terminated. An HA employee asked Gandy why he had not notified the HA of these maintenance issues earlier, but Gandy did not provide an answer. Gandy was informed that he would be contacted as soon as possible regarding an inspection of the unit. At the January 2 meeting with the HA employees, Gandy signed the stipulated agreement that the HA had sent him, in which he acknowledged that the owner had complained that he had violated his lease by failing to pay rent; that this was a violation of his family obligations and grounds for termination of the lease; that this was a formal written warning to him; and that any future violations would result in notice of an action to terminate his participation in the program.

The HA's Administrative Plan provides: "Nonpayment of rent is always considered a serious violation of the lease. [¶] The participant cannot withhold rent under the program for uninhabitability without permission of the [HA], as the [HA] must be notified along with the owner of conditions needing repair in the unit, the owner must be given an opportunity to remedy the problems, and the [HA] must be given the opportunity to conduct a special inspection to determine if the unit fails [housing quality standards]. If the participant fails to pay rent without permission of the [HA], the participant's non-payment of rent will be considered a serious lease violation."

On January 9, 2007, the HA inspected Gandy's rental unit. The unit failed to meet housing quality standards, and a notice to this effect was mailed to Gandy and property owner Johnson. The notice required that the conditions be corrected by January 24, 2007. According to Johnson, on January 12 he called Gandy and left a message about the HA notice and requested that Gandy call him back. Johnson tried again to reach Gandy by phone on January 15, but never received a call back from Gandy. On January 18, Johnson went to the residence and on January 22 his handyman went to the residence. However, on both occasions no one answered the door although it appeared someone was home.

The problems identified by the HA inspector included roaches, torn kitchen floor, exhaust fan in kitchen and garbage disposal not working properly, leaking water from refrigerator, peeling paint on outside wall, and defective gas control valve identified by SDG&E.

On January 17, 2007, Johnson notified the HA that Gandy had still not paid the December or January rent. An HA employee called Gandy and left him a message that he should call the agency. On January 30, having heard nothing from Gandy, the HA sent Gandy a notice of intended action to terminate his participation in the program, explaining that he had committed a serious and/or repeated violation of the lease by failing to pay the December and January rent.

On February 1, 2007, Gandy called the HA regarding the notice of intended action. HA personnel informed Gandy that he could not transfer units unless he brought the rent current. On February 6, Gandy went to Johnson's home and paid the back rent. Johnson told Gandy that he had been trying to contact him regarding the repairs, and Gandy told Johnson that he would be moving. On February 7, Gandy provided the HA a receipt showing that he had paid the rent for December, January, and February. Because the repairs had not been made, the HA gave Gandy a packet so he could transfer units.

In or about March 2007, Gandy filed an action against Johnson in small claims court seeking $5,000 damages for failing to make the repairs in the rental unit.

On April 5, 2007, Johnson gave Gandy a 24-hour "notice of entrance." Gandy called Johnson and told him he would not allow him to enter the unit. On April 6, Johnson, a repairperson from Citywide Heating, and police officers arrived at the unit for purposes of making the scheduled repairs. Gandy refused to allow Johnson or Citywide Heating to enter, but he did allow the police to enter because they told him they had to ensure that the heater was not a danger to the tenants. The police entered the unit and concluded the heater was not a danger. Johnson advised the HA that he was prepared to make the repairs as soon as he could gain entry.

Meanwhile, in March and April 2007, Johnson gave Gandy three-day notices for failure to pay rent for March and April. On May 25, 2007, Johnson obtained a judgment evicting Gandy from the unit and ordering him to pay $622 ($357 for past due rent and $265 for costs). On June 6, Gandy was locked out of the unit by the sheriff's department.

Gandy testified at the administrative hearing to present his positions regarding the rent and repair issues. His testimony was as follows: He was entitled to withhold rent under California law because the landlord had not repaired the defects in the unit, including the defective heater and windows that did not lock. He told Johnson about the heater problem, and Johnson stated he did not want to pay $1,200 to fix the heater. At one point, he and Johnson agreed that he would move out and that he did not have to pay any more rent. Later, Johnson came and provided a three-day notice and said he had to pay rent. Johnson did not come to the unit with the police to make the repairs until three months after receiving written notice from the HA and after he had filed the lawsuit for damages against Johnson. Because of Johnson's earlier failure to fix the windows and heater, he did not trust Johnson and did not let him into the unit. Further, he did not believe he had to pay rent because Johnson had already violated the law by failing to make the repairs in timely fashion. Johnson unlawfully evicted him in retaliation for his complaints about the uninhabitability of the unit.

Gandy stated that his small claims action against Johnson was ultimately dismissed because it needed to be brought in superior court.

Gandy asserted that the repairs should have been made within 24 hours because they concerned health and safety. The HA stated that the repairs were not classified as emergency repairs under its standards.

Residence of Minor Children

The HA submitted a document showing that in July 2006 and February 2007, Gandy signed declarations under penalty of perjury representing to the HA that his two minor children were living or staying with him. On these same occasions, Gandy signed forms advising him that his rental assistance could be terminated if he failed to report to the HA in writing within 14 days of any addition or deletion of household members. In April and May 2007, HA received information indicating that Gandy had not provided HA with accurate information about the minor children living with him. On May 11, 2007, the minors' mother told the HA that one child had been living with her for the past four years and that the other child had been living with Gandy for the last eight months and was planning to return to live with her by the end of May 2007.

In response to the HA's allegation that he provided false information about his children's residence with him, Gandy asserted that the HA's evidence was hearsay.

Hearing Officer's Determination

In a ruling issued on July 16, 2007, the hearing officer concluded that Gandy had been properly terminated from the Section 8 program. The hearing officer found that Gandy had violated his lease by failing to timely pay his rent and failing to allow the landlord to enter the unit to make repairs. The hearing officer reasoned that although under California law tenants have several options when a landlord will not make repairs in a unit that is uninhabitable, Gandy was nevertheless obligated to follow the rules and regulations of the Section 8 program and his lease. The hearing officer also found that Gandy provided false or misleading information regarding his children living at the unit, noting that Gandy had not presented any evidence to refute the mother's statement that one child had lived continuously with her and the other child had lived with Gandy for the past eight months only.

Trial Court's Denial of Mandamus Relief

On September 18, 2007, Gandy petitioned for writ of mandate challenging his termination from the Section 8 program. He argued that his termination from the Section 8 program was improper because Johnson had breached the implied warranty of habitability and committed a retaliatory eviction, "along with the help and cover up" of the HA employees involved in the matter. On June 23, 2008, the trial court denied the writ petition and entered judgment in favor of the HA. Exercising its independent judgment, the trial court found the weight of the evidence supported the administrative decision. The trial court found that the evidence supported the conclusion that the HA properly terminated Gandy's participation in the Section 8 program because he failed to timely pay his rent, withheld the rent without the HA's permission, and failed to allow the landlord to enter the premises to make repairs. This constituted a serious violation of the lease and a violation of the HA's Administrative Plan. Gandy also failed to accurately report his household composition regarding his children, which supported the conclusion that he provided false or misleading information to the HA.

Gandy's writ petition named as respondents the HA, several HA employees, and the hearing officer who presided at his administrative hearing. We refer to the respondents collectively as the "HA."

DISCUSSION

When a fundamental vested right is affected by an administrative decision, the trial court determines, based on the exercise of its independent judgment, whether the weight of the evidence supports the administrative decision. (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057; Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372; Code Civ. Proc., § 1094.5, subd. (c).) The HA agrees that this case involves a fundamental vested right subject to independent review by the trial court. On appeal from a mandamus proceeding where the trial court exercised its independent judgment, we review the record to determine whether the trial court's findings are supported by substantial evidence, resolving all evidentiary conflicts and drawing all legitimate and reasonable inferences in favor of the trial court's decision. (JKH Enterprises, Inc. v. Department of Industrial Relations, supra, 142 Cal.App.4th at p. 1058; Morgenstern v. Department of Motor Vehicles, supra, 111 Cal.App.4th at p. 372.)

The record supports the trial court's conclusion that the HA properly terminated Gandy's participation in the Section 8 program. The federal regulations governing the Section 8 program require the HA to terminate a tenant's participation in the program if the tenant has been evicted for a serious violation of the lease, which includes nonpayment of rent. (24 C.F.R. §§ 982.552(b)(2), 982.310(a)(1).) These regulations require that the owner must maintain the unit in accordance with housing quality standards, and provide that the HA may terminate a family's assistance if the family causes a breach of the housing quality standards. (§ 982.404 (a)(1), (4).) Further, the HA has the authority to terminate assistance if the tenant has violated the family obligations, including the obligations to supply true and complete information, refrain from committing any serious or repeated lease violation, and promptly notify the HA if any family member no longer resides in the unit. (§§ 982.552(c)(1)(i), 982.551(b)(4), (e), (h)(3).)

Subsequent section references are to Title 24 of the Code of Federal Regulations unless otherwise specified.

Gandy falls within the categories of persons who may be terminated from the program. By his own admissions, Gandy committed serious violations of the lease by failing to pay rent and failing to permit the owner to enter the premises to repair the conditions identified by the HA as below the housing quality standards. The owner prevailed in the unlawful detainer proceeding and evicted Gandy for failure to pay rent.

Gandy cannot avoid the consequences of his violations of the lease terms and the family obligations based on his claim that he was entitled to withhold rent because the owner did not promptly fix the problems at the unit. The HA presented evidence showing that the owner made efforts to contact Gandy about the problems in January but was unable to reach him. The trial court was entitled to credit this evidence and to reject Gandy's claims that the owner stated he did not want to spend the money to repair the heater and that the owner ultimately evicted him in retaliation for complaining about habitability. The HA repeatedly notified Gandy that his assistance could be terminated if he did not pay his portion of the rent, and advised him that he could not unilaterally decide to withhold rent. In April, Gandy chose not to let the owner into the residence to make repairs. Although California law provides tenants with certain rent withholding remedies and unlawful detainer defenses when there are habitability issues (Civ. Code, §§ 1942, 1942. 3, 1942.4), Gandy was required to abide by the HA's policy precluding him from withholding rent without the HA's agreement. Additionally, Gandy cannot properly justify his failure to pay rent under circumstances where the owner tried to contact him and where he later prevented the owner from entering the unit to make repairs.

Further, the trial court was entitled to credit the HA's evidence that Gandy provided inaccurate and incomplete information to the HA indicating that his two minor children were living with him. The HA's evidence showed that only one child was living with him, and that this child had not lived with him the entire term of the Section 8 lease and was planning to return to the mother's home at the end of May 2007. Although this evidence was hearsay (i.e., statements to the HA from the mother), under the governing federal regulations, hearsay evidence is admissible at the administrative proceeding reviewing the HA's decision. (§ 982.555(e)(5) ["Evidence may be considered without regard to admissibility under the rules of evidence applicable to judicial proceedings."].)

The record supports the trial court's ruling upholding the HA decision to terminate Gandy's participation in the Section 8 program.

DISPOSITION

The judgment is affirmed. Parties to bear their own costs on appeal.

WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.


Summaries of

Gandy v. Housing Authority of County of San Diego

California Court of Appeals, Fourth District, First Division
Apr 29, 2009
No. D053616 (Cal. Ct. App. Apr. 29, 2009)
Case details for

Gandy v. Housing Authority of County of San Diego

Case Details

Full title:JARVIS E. GANDY, Plaintiff and Appellant, v. HOUSING AUTHORITY OF THE…

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

Date published: Apr 29, 2009

Citations

No. D053616 (Cal. Ct. App. Apr. 29, 2009)