Opinion
B135071
Filed August 24, 1999 Depublished December 15, 1999
Appeal from the Municipal Court for the Beverly Hills Judicial District of Los Angeles County, No. 98U00197, Gerald Rosenberg, Temporary Judge.
Pursuant to California Constitution, article VI, section 21.
Gordon P. Gitlen for Plaintiff and Appellant.
Jeffrey Licht Associates and Jeffrey Licht for Defendant and Appellant.
OPINION
FACTS AND PROCEDURAL BACKGROUND
On March 20, 1998, plaintiff Anne Sterman filed an unlawful detainer action against defendant Laurence Heifler. The suit alleged defendant failed to timely pay his March rent of $299, and had not responded to a three-day notice to pay rent or quit. Defendant answered, alleging inter alia, that he timely offered his payment of rent and that the eviction was retaliatory in nature due to the low monthly rent he was paying under rent control laws.
All subsequent references to dates shall refer to the year 1998.
Following a court trial, the court issued a document entitled "Findings and Order re Conditional Judgment." In this document, the court stated it found that the three-day notice was properly issued and that defendant failed to pay the rent due within that three-day period. The document continues: "Therefore, in most cases the Court would enter judgment in favor of plaintiff and against defendant. However, the court cannot ignore the fact that the defendant, an octogenarian, has been a tenant in the subject matter premises for 25 years and that prior to the month of March, 1998, he paid his rent on time. Further, if judgment were entered in favor of plaintiff and that if defendant filed a motion to be relieved from his failure to pay said rent, the court would probably grant that request."
The court concluded that "[i]n the interest of savings [ sic] these parties time, money and anxiety," it would issue a judgment which essentially granted defendant relief from forfeiture without having to first make that motion. The court ordered that if defendant paid past due rent for March, April and May, plus $350 for attorney's fees and $120 for costs of suit to plaintiff (a total of $1,367), "judgment will be entered in favor of defendant with no costs of suit." The court's order gave defendant approximately two weeks to tender payment.
It is asserted by defendant and undisputed by plaintiff that defendant timely tendered payment of this amount.
On May 20, plaintiff filed a motion for new trial, contending the trial court's approach to the judgment was improper and constituted an irregularity in the proceeding by which she was prevented from having a fair trial (Code Civ. Proc., § 657, subd. 1), and was a surprise which ordinary prudence could not have guarded against (Code Civ. Proc., § 657, subd. 3). Defendant opposed the motion on the ground it was untimely made.
Following a hearing on plaintiff's motion, the court granted the motion for new trial, but instead of ordering a new trial, the court ordered that the new hearing date of July 1, be set as a hearing on the propriety of relieving defendant from forfeiture of the lease. The July 1 hearing was unreported and the record on appeal does not contain any papers that parties may have filed in connection with that hearing. On July 7 the court issued an order stating its original judgment (entering judgment in favor of defendant) was to remain as the judgment in this case. Plaintiff timely appealed from this final order.
Defendant filed a timely notice of appeal from this order.
On appeal, defendant challenged the court's order granting the motion for new trial, and plaintiff challenges the judgment of the trial court, which plaintiff claims improperly granted defendant relief from forfeiture. We conclude plaintiff's contentions are meritorious.
DISCUSSION
Motion for new trial
(1) The trial court properly granted the motion for new trial. First, the motion was timely filed on May 20, for judgment was not ordered to be entered until May 14. Second, the order of conditional judgment entered by the trial court was both an "irregularity in the proceedings" under Code of Civil Procedure section 657, subdivision 1, and also a "surprise which ordinary prudence could not have guarded against" under Code of Civil Procedure section 657, subdivision 3, because defendant had never requested relief from forfeiture nor is there anything in the record which shows that it was contemplated by the parties or the court before the order of April 24 was issued.
Relief from forfeiture
(2) Code of Civil Procedure section 1179 provides the exclusive procedure for obtaining relief from an unlawful detainer forfeiture of a rental agreement. (Friedman et al., Cal Practice Guide: Landlord-Tenant (The Rutter Group 1998) ¶ 9:431, p. 9-108.8, citing Boston Properties v. Pirelli Tire Corp. (1982) 134 Cal.App.3d 985 [ 185 Cal.Rptr. 56], and Wilson v. Bill Barry Enterprises (9th Cir. 1987) 822 F.2d 859.)
In granting the motion for new trial, but ordering the matter heard as a motion for relief from forfeiture under Code of Civil Procedure section 1179, without changing the judgment as requested by plaintiff (to show a judgment against defendant with a forfeiture of the rental agreement), there was simply no basis for the court to grant the relief it fashioned. In order to consider a motion for relief from forfeiture, there is an essential element required which is missing from the present case: a forfeiture.
Plaintiff contends that the trial court in the present action could not have in any event ordered relief from forfeiture because there was no lease which could be forfeited. Code of Civil Procedure section 1179 by its express language applies "against forfeiture of a lease" and therefore "does not apply where the tenancy term has otherwise expired. Thus, § 1179 relief from forfeiture cannot be granted for month-to-month rental agreements; nor would it apply to holdover tenancies." (Friedman et al., Cal Practice Guide: Landlord-Tenant, supra, ¶ 9:432.4, p. 9-109. italics omitted.)
Defendant argues that the result in this case should be different because the rental agreement is controlled by the Beverly Hills Rent Stabilization Act. Defendant cites no authority in support of this contention, nor are we directed to any section of the rent stabilization act which permits restoration of a month-to-month tenancy which has been terminated by a tenant's failure to timely pay rent. The portion of the act that does apply (§ 4-5.502 [failure to pay rent]) provides as follows: "A landlord may bring an action to recover the possession of an apartment unit if the tenant has failed to pay the rent to which the landlord is entitled or any surcharge which has been lawfully imposed." Thus the act authorizes the termination of a month-to-month tenancy for nonpayment of rent. No provision of the act extends a tenancy beyond that agreed upon by the parties at the inception. The act does no create a tenancy. It governs the tenancy in certain respects. Here, as a result of the nonpayment of rent, the month-to-month tenancy was terminated. Nothing of the tenancy remained to be forfeited. It therefore does not come within the provisions of Code of Civil Procedure section 1179
CONCLUSION
The relief afforded to defendant by the trial court under Code of Civil Procedure section 1179 was unavailable under the circumstances, and should not have been granted. Because this issue is dispositive of both appeals, we need not further address the propriety of the trial court's unique judgment.The judgment is reversed, and the matter is remanded with directions to enter judgment in favor of plaintiff for the amount of damage and costs according to proof. Plaintiff is to recover costs on appeal.
Kakita, J., concurred.
While I agree with the majority in concluding that the trial court correctly granted the motion for new trial, I respectfully disagree that relief from forfeiture under Code of Civil Procedure section 1179 would not be available under any circumstances in this case. Plaintiff argues and the majority agreed that relief pursuant to that section was not available to defendant because the tenancy involved was month-to-month. There is no dispute that the tenancy involved here was month-to-month, based on an oral agreement, and that it was subject to the Beverly Hills Rent Stabilization Act (hereafter, BHRSA).
The issue is whether a month-to-month tenancy subject to a rent stabilization ordinance is a tenancy subject to the provisions of Code of Civil Procedure section 1179 Plaintiff argues that Code of Civil Procedure section 1179 by its own terms applies only to forfeiture of a "lease," and, as no lease was involved here, the tenant had no remaining property interest which was forfeited. Plaintiff further argues that there is no provision in the BHRSA for relief from a permitted eviction.
The BHRSA permits evictions only under certain conditions, which include the failure to pay rent, violation of an obligation or covenant of the tenancy, commission of a nuisance, etc. (BHRSA, §§ 4-5.501 to 4-5.513.) The ordinance implies a right on the part of the tenant to continue in possession and an obligation on the part of the landlord to permit the continuation of the tenancy absent the occurrence of certain conditions, much like a lease. (See Friedman et al., Cal Practice Guide: Landlord-Tenant (The Rutter Group 1997) ¶ 2:97, p. 2B-7.) This is significantly different from the traditional month-to-month tenancy which can be terminated at the will of either party upon 30 days' notice. ( Ibid.; see Miller Desatnik Management Co. v. Bullock (1990) 221 Cal.App.3d Supp. 13, 18 [ 270 Cal.Rptr. 600].)
Absent such a right to terminate on 30 days' notice, I would conclude that by operation of law the ordinance creates a tenancy for an extended term, or "lease," within the meaning of Code of Civil Procedure section 1179 As such, I would reverse the judgment, return the matter to the trial court, and permit the court to consider a motion for relief from the forfeiture under Code of Civil Procedure section 1179 if such relief were sought.
In general, ". . . our law abhors a forfeiture." ( Nasir v. Sacramento County Off. of the Dist. Atty. (1992) 11 Cal.App.4th 976, 986 [ 15 Cal.Rptr.2d 694].) In furtherance of this general policy the Legislature has provided for the equitable relief from forfeitures of rights under certain conditions. (See Civ. Code, § 3275)