This case was last updated from Los Angeles County Superior Courts on 07/15/2019 at 00:56:55 (UTC).

HELEN DUFFY VS VISEMER DE GELT LLC ET AL

Case Summary

On 01/31/2018 HELEN DUFFY filed a Property - Other Eviction lawsuit against VISEMER DE GELT LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SUSAN BRYANT-DEASON and TERESA A. BEAUDET. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2518

  • Filing Date:

    01/31/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Eviction

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SUSAN BRYANT-DEASON

TERESA A. BEAUDET

 

Party Details

Plaintiff and Petitioner

DUFFY HELEN

Defendants and Respondents

DOES 1 - 10

VISEMER DE GELT LLC

FEINER SOL

Other

THOMAS ANDREW J. ESQ.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GORDON MARCIA Z.

THOMAS ANDREW JAMES

GORDON MARCIA Z

Defendant and Respondent Attorneys

BRANDON S. DIMOND

LEWIS BRISBOIS BISGAARD & SMITH LLP

STEFFY JUDITH JOANNE

SARKISSIAN NINELI

LOUREIRO KARL ROBERT

 

Court Documents

Notice

2/26/2019: Notice

Motion in Limine

3/27/2019: Motion in Limine

Motion in Limine

3/27/2019: Motion in Limine

Proof of Service (not Summons and Complaint)

3/27/2019: Proof of Service (not Summons and Complaint)

Statement of the Case

4/5/2019: Statement of the Case

Opposition

4/5/2019: Opposition

Opposition

4/5/2019: Opposition

Opposition

4/5/2019: Opposition

Objection

4/5/2019: Objection

Reply

4/8/2019: Reply

Reply

4/8/2019: Reply

Proof of Service (not Summons and Complaint)

4/9/2019: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

4/9/2019: Proof of Service (not Summons and Complaint)

Notice

4/10/2019: Notice

Stipulation - No Order

7/2/2019: Stipulation - No Order

Stipulation - No Order

7/2/2019: Stipulation - No Order

NOTICE OF ORDER RELATING CASE NO. 18STUD01617 TO THIS CASE AND STAYING CASE NO. 18STUD016I7 PENDING THE RESOLUTION OF THIS CASE

4/2/2018: NOTICE OF ORDER RELATING CASE NO. 18STUD01617 TO THIS CASE AND STAYING CASE NO. 18STUD016I7 PENDING THE RESOLUTION OF THIS CASE

NOTICE OF CASE MANAGEMENT CONFERENCE

2/14/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

115 More Documents Available

 

Docket Entries

  • 07/12/2019
  • at 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Trial Setting Conference - Held - Continued

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  • 07/12/2019
  • at 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Final Status Conference - Held - Continued

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  • 07/12/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore (csr: Monica Castaneda/ #10323); Filed by Clerk

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  • 07/12/2019
  • Minute Order ( (Final Status Conference; Trial Setting Conference)); Filed by Clerk

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  • 07/05/2019
  • at 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Final Status Conference - Held - Continued

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  • 07/05/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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  • 07/05/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Visemer De Gelt, LLC (Defendant); Sol Feiner (Defendant)

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  • 07/05/2019
  • Order (disclosure and order re preservation overlay zone)

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  • 07/05/2019
  • Response (Plaintiff's Response to Defendants' Proposed Stipulation Regarding Motion in Limine "C"); Filed by Helen Duffy (Plaintiff)

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  • 07/03/2019
  • Reply (Regarding Supplemental Briefing on Motions in Limine H, I, and J); Filed by Helen Duffy (Plaintiff)

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166 More Docket Entries
  • 03/26/2018
  • Declaration; Filed by Plaintiff/Petitioner

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  • 03/06/2018
  • Association of Attorney; Filed by Helen Duffy (Plaintiff)

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  • 03/06/2018
  • NOTICE OF ASSOCIATION OF COUNSEL BY GORDON KEMPER LLP ATTORNEYS FOR PLAINTIFF HELEN DUFFY

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  • 02/26/2018
  • Notice of Related Case; Filed by Helen Duffy (Plaintiff)

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  • 02/26/2018
  • Notice of Related Cases

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  • 02/14/2018
  • Notice of Case Management Conference; Filed by Clerk

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  • 02/14/2018
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 01/31/2018
  • Complaint; Filed by Helen Duffy (Plaintiff)

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  • 01/31/2018
  • VERIFIED COMPLAINT FOR DAMAGES, INJUNCTIVE AND DFCIARATORY RELIEF

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  • 01/31/2018
  • SUMMONS

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Complaint Information

Mareia. Z:. Gordon, Esq [SBN 1413754

GORDON'KEMPERLLP

645 West 9" Street; Suite:213;

}Los Anoreles CAf90015 Tel+(213):452:8283 FILED | Faxi(213):888-0701 ' Superior Coupt of Californiz ° E.Ematl marcia:gordon@gordonkempericom Countv of Los Anoeles

fAndrewJ Thomas, Esq. [SBN! 128252 © MAY 07 2018 THOMAS & THOMASLEP : :

333 Soiith Hope Street, Suite 3500 .. - . SherriR, Ca&fixecunve Otticer/Clerk of Cours Los Angeles; CA: 90071 By \ enuil Tel:(213)223-7113 Raul Sonchez

Fax: (213)223-9115, - :Emall ajl@thomaslip.com;

;Attorneys for Plantitf* HELEN; DUFFY

SUPERIOR COURT OF THE:STATE:OF CALIFORNIA: ‘COUNTY:OF LOS ANGELES, CENTRAL:DISTRICT

HELEN.DUFFY; - Lead Case'No:.BC692518:

Plaintiff: "Related:Stayéd Case No. 18STUDO1617 . (Assigned té Hon. Teresa A. Beatidet, Dept. 50) VISEMER.DE GELT; LLC, 4.California.

Lllmlted habllxty Company; SOL EEINER ;:an: ifidividual; ahd DOES 1 thitough 10; mclusw

PROOF OF SERVICE OF'SUMMONS :AND . EIRST AMENDED:COMPLEAINT ON:ALL:

) DEFENDNATS

- Defénidants.. CME Date: May 215 2018 Time: §:30:a.m::

: Dfi_l_?,t.:- 50°

. Trial Date: None

‘-/N

Tentative Rulings

Case Number: BC692518    Hearing Date: September 28, 2020    Dept: 50

THE COURT HAS REVISED THE STATEMENT OF DECISION AND CAN PROVIDE THE PARTIES WITH A MARKUP.  THE REVISED STATEMENT APPEARS BELOW:

Marcia Z. Gordon, Esq. (SBN 141375)

GORDON KEMPER LLP

645 West 9th Street, Suite 213

Los Angeles, CA 90015

Tel: (213) 452-8283

Fax: (213) 888-0701

Email: marcia.gordon@gordonkemper.com

Andrew J. Thomas (SBN 128232)

THOMAS & THOMAS LLP

811 Wilshire Boulevard, Suite 1700

Los Angeles, CA 90017

Tel: (213) 223-7113

Fax: (213) 223-7115

Email: ajt@thomasllp.com

Attorneys for Plaintiff

HELEN DUFFY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES, CENTRAL DISTRICT

HELEN DUFFY,

Plaintiff,

vs.

VISEMER DE GELT, LLC, a California limited liability company; SOL FEINER, an individual; and DOES 1 through 10, inclusive,

Defendants.

Case No. BC692518

(Related Case No. 18STUD01617)

(Assigned to Hon. Teresa A. Beaudet, Dept. 50)

STATEMENT OF DECISION AFTER PHASE 1 COURT TRIAL

Action Filed: January 31, 2018

Phase 2 Jury Trial Date: July 28, 2021

PROCEDURAL MATTERS

Phase 1 of the trial in this action was held in Department 50 of this Court on January 27, 28, February 3, and August 3, 2020, the Honorable Teresa A. Beaudet, Judge, presiding, sitting without a jury. The Phase 1 trial was conducted pursuant to the “Stipulation and Order Mooting Defendants’ Motion in Limine “N” And to Conduct Trial of Plaintiff’s Declaratory Relief Cause of Action in Lieu of Trial in the Related Unlawful Detainer Action,” (“Stipulated Order “N”), filed and entered by this Court on August 9, 2019.

Plaintiff Helen Duffy (“Ms. Duffy”) appeared though her attorneys of record, Andrew J. Thomas, Esq., and Marcia Z. Gordon, Esq. Defendants Sol Feiner (“Mr. Feiner”) and Visemer De Gelt, LLC, a California limited liability company (“VDG”) appeared through their attorney of record, Judith J. Steffy, Esq.

The parties introduced oral and documentary evidence. Based on the stipulation of the parties in open court on February 3, 2020, the parties presented their Closing Arguments in writing, which consisted of “Plaintiff Helen Duffy’s Initial Closing Argument Brief After Phase 1 Trial” filed on February 21, 2020, “Defendants’ Trial Phase 1 Closing Argument Brief” filed on March 6, 2020, and “Plaintiff Helen Duffy’s Final Closing Argument Brief After Phase 1 Trial” filed on March 13, 2020. After continuances necessitated by the Court’s closure due to the coronavirus, the Court allowed the parties to present oral arguments on their closing briefs via video appearances on August 3, 2020, at the conclusion of which the Court orally announced its Tentative Decision.

PROVISIONS REGARDING THE FINALITY OF THIS STATEMENT OF DECISION

Based on the stipulation of the parties in open court on August 3, 2020, counsel for Ms. Duffy was ordered to prepare, file and serve this proposed Statement of Decision by September 10, 2020. Pursuant to such August 3, 2020 stipulation, and pursuant to Paragraph 13 of Stipulated Order “N”, and California Rule of Court 3.1590(g), this proposed Statement of Decision shall become the Court’s Statement of Decision, unless within 15 days after e-service of this proposed Statement of Decision, Defendants file and serve objections, in which event the Court shall exercise its discretion under California Rule of Court 3.1590(k) to change this proposed Statement of Decision with or without a further hearing.

ENTRY OF JUDGMENT POSTPONED

The provisions of California Rules of Court 3.1590(f) and (j), generally providing for the preparation and entry of a Judgment on a Statement of Decision, do not apply. This is because Stipulated Order “N” bifurcated the trial into phases and the Phase 2 jury trial has not yet been conducted. More specifically, Paragraph 4 of Stipulated Order “N” provides that Judgment will not be entered until after the Phase 2 jury trial, at which time this Statement of Decision shall be incorporated into the final Judgment, unless, as provided in Paragraph 12 of Stipulated Order “N”, Ms. Duffy dismisses this action after this Statement of Decision becomes final, in which event this Statement of Decision shall be enforceable as the Judgment of this Court (and following any such dismissal Ms. Duffy shall be entitled to the entry of a Judgment).

COMPLIANCE WITH CODE OF CIVIL PROCEDURE § 632

In issuing this Statement of Decision, the Court will not attempt to address all the legal and factual issues raised by the parties during the trial, nor will the Court attempt to summarize all the evidence. This Statement of Decision will explain the factual and legal basis of the Court’s decision as to the principal controverted issues at trial by setting forth the Court’s determinations as to the ultimate facts and the legal basis for its decision. Code Civ. Proc. § 632; Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 45-46.

THE ROLE OF STIPULATED ORDER “N” IN FRAMING THE CONTROVERTED ISSUES AND ITS EFFECT ON EVIDENCE RULINGS

While the Court showed flexibility in allowing counsel to present their cases, the Court exercised its discretion to exclude proffered testimony and exhibits based on the limitations of relevant evidence resulting from the very specific controverted issues for trial that were agreed to by the parties as set forth in Paragraph 1 of Stipulated Order “N,” which states: “The Court shall try the issues in the UD Action, including the validity or invalidity of the Ellis Act eviction notices, under the Sixth Cause of Action for Declaratory Relief in Plaintiff Ms. Duffy’s First Amended Complaint in this Action.”

STATEMENT OF DECISION

The Court, having considered the testimonial and documentary evidence, having taken judicial notice of the Unlawful Detainer Complaint in the Related Action, and having considered the terms of Stipulated Order “N” under which the Phase 1 trial was conducted and the parties’ closing argument briefs as well as the arguments of counsel, issues the following Statement of Decision on the controverted issues in the Phase 1 trial:

CONTROVERTED ISSUE NO. 1

With respect to the controverted issue of whether the eviction notice (inclusive of the Ellis Act Form E3) posted by VDG on Ms. Duffy’s front door on January 27, 2017 was a valid Ellis Act eviction notice, the Court finds the notice was invalid.

THE FACTUAL AND LEGAL BASIS OF THE COURT’S DECISION ON CONTROVERTED ISSUE NO. 1

1. Ms. Duffy’s Tenancy. Pursuant to a written Rental Agreement signed by her original landlord Joseph Blum on June 24, 1984 (Trial Ex. 1), Ms. Duffy has been the tenant in possession residing in the apartment commonly known as 129 N. Detroit Street in the City and County of Los Angeles since approximately July 10, 1984. Ms. Duffy’s apartment is the upstairs unit of a duplex commonly known as 127 – 129 North Detroit Street in the City and County of Los Angeles. Mr. Blum sold the property a few months later to Bion A. Provost and his wife Ceceile P. Provost, both of whom had died as of 2012.

2. VDG’s Status as Ms. Duffy’s Landlord. On November 12, 2014, VDG, purchased the property from the Provosts’ son, and became Ms. Duffy’s new landlord under the Rental Agreement, as modified by the various amendments previously executed by the Provosts. Mr. Feiner is the owner and managing member of VDG and he has been the authorized manager of the building where Ms. Duffy lives since VDG purchased it. (Joint List of Stipulated Facts for Trial 4, 5)

3. Ms. Duffy’s Tenancy is Governed by Rent Control and Her Rental Payments. At all times since her tenancy started, Ms. Duffy’s tenancy has been governed by the Rent Stabilization Ordinance of the City of Los Angeles, commonly known as rent control. Ms. Duffy is older than 62 years old. (Joint List of Stipulated Facts for Trial ¶¶ 2, 6) As explained below, Ms. Duffy’s length of tenancy and age bestowed her with certain rights under the Ellis Act to receive relocation benefits and to make an election to extend the normal 120-day Ellis Act eviction period to one year.

The evidence at trial showed that since Ms. Duffy took possession of her apartment in 1984 she always paid her rent in full and on time, and after VDG commenced its Ellis Act eviction on January 25, 2017, Ms. Duffy continued to timely mail her rent checks to Mr. Feiner, who rejected all of them and refused receipt of the envelopes containing the rent mailed by Ms. Duffy, resulting in the return of the envelopes by the U.S. Postal Service to Ms. Duffy.

4. VDG’s Use of the Ellis Act to Terminate Ms. Duffy’s Rent Controlled Tenancy.

Ms. Duffy’s landlord, VDG, decided to evict Ms. Duffy from her apartment by using the Ellis Act (codified in Government Code §§ 7060 – 7060.7). The Ellis Act allows a landlord to evict any tenant, even a tenant who has always paid her rent on time and has protection from eviction under the City’s rent control ordinance. (Id.)

In the City of Los Angeles, an Ellis Act eviction is commenced when a landlord files its Ellis Act Form E2 Notice of Intent to Withdraw Units from Rental Use (“Notice to Withdraw”) with the City of Los Angeles Housing and Community Investment Department (“HCIDLA”). See, Govt. Code (Govt. Code) § 7060.4, (a) and (c); Los Angeles Municipal Code (“LAMC”) §§ 151.22 and 151.23. A.[1])

After VDG filed an initial Ellis Act Notice to Withdraw in late 2016 that it withdrew, VDG filed its operative Notice to Withdraw on January 25, 2017 (the “Filing Date”). VDG’s date-stamped Notice to Withdraw filed with the HCIDLA on January 25, 2017 was admitted into evidence as Trial Exhibit 94.

5. The 5-Day Deadline Under the Ellis Act to Serve a Tenant with a Written Notice Terminating Her Tenancy and with an HCIDLA Ellis Act Form E3. Under the Ellis Act, as it is administered in Los Angeles by the HCIDLA, VDG had 5 days after the Filing Date to serve Ms. Duffy with: (a) a written notice terminating her tenancy 120 days after the Filing Date; and (b) an HCIDLA Ellis Act Form E3 filled in by VDG to notify Ms. Duffy that the Filing Date was January 25, 2017, so that she could accurately calculate the exact date when her tenancy would terminate. LAMC § 151.23.C.

Based on the January 25, 2017 Filing Date, the 5-day period for giving Ms. Duffy a written notice terminating her tenancy and a properly completed Ellis Act Form E3 expired on January 30, 2017.

6. VDG’s Service of a Termination Notice and Form E3. On January 27, 2017, within the 5-day period for service, VDG served Ms. Duffy with a written notice terminating her tenancy which attached an Ellis Act Form E3. Service was accomplished by posting the documents on her front door (the “Posted Notice”). (Trial Exs. 96 and 170.)[2]

7. VDG’s Posted Notice Contained the Wrong Dates and Therefore Did Not Impart the Notice Required by the Ellis Act. The Posted Notice is invalid because the dates in it, and therefore the information it imparted to Ms. Duffy, were incorrect and constituted a clear violation of the Ellis Act on the face of the Posted Notice.

Rather than giving Ms. Duffy correct notice that her tenancy was terminated 120 days after the January 25, 2017 Filing Date, the Posted Notice incorrectly notified Ms. Duffy that her tenancy was terminated 120 days after January 25, 2016.

Since Ms. Duffy is over 62 years old, she had the statutory right under the Ellis Act to receive written notice that she had 60 days after the January 25, 2017 Filing Date to deliver to VDG a written election to extend the 120-day Ells Act eviction period to one year after the Filing Date. (Govt. Code

§ 7060.4, subdivisions (b) and (c)(5)(A)-(C), and LAMC § 151.23.C.5(a)-(c).) The Posted Notice, however, incorrectly notified Ms. Duffy that she had 60 days after January 25, 2016 to deliver her written election.

It is true, as Defendants pointed out during their cross-examination of Ms. Duffy, that after

Ms. Duffy was served with the Posted Notice she made a phone call to Mr. John Busby of the HCIDLA, who advised her of the correct deadline to send her election to extend the normal 120-day Ellis Act eviction period to one year after the Filing Date. It is also true that based on that phone call Ms. Duffy sent her written election to VDG and to the HCIDLA before the correct deadline for doing so.

However, neither Ms. Duffy’s calling Mr. Busby, nor the act of her sending her election on time changes the fact that the contents of VDG’s Posted Notice failed to contain the correct information required by the Ellis Act. Defendants’ arguments to the contrary are unsupported by the Ellis Act. Further, Defendants did not cite a single appellate case holding that putting the wrong termination date in an Ellis Act eviction notice is permissible, harmless or excusable. Defendants also did not cite any case holding that leaving a blank space in the portion of the Ellis Act Form E3 where the landlord is required to insert the Filing Date is permissible, harmless or excusable.

8. The Credible Testimony of Ms. Emma Garcia of the HCIDLA. Ms. Emma Garcia, an Ellis Act supervisor of the HCIDLA, was a credible witness who gave specific factual explanations for why the Posted Notice failed to comply with the procedures that the HCIDLA is supposed to follow in administering the Ellis Act and why the HCIDLA’s approval of VDG’s Ellis Act eviction of

Ms. Duffy was a mistake.

Ms. Garcia explained that the HCIDLA requires landlords using the Ellis Act to serve termination of tenancy notices with accurate dates, which she testified the Posted Notice did not contain. She also testified that the HCIDLA furnishes landlords with Ellis Act Form E3 for the landlord to complete with the Filing Date and to serve on a tenant. Ms. Garcia testified the Form E3 contains the information a landlord using the Ellis Act is required to serve on a tenant. As Ms. Garcia explained, such information includes the date when the tenancy expires and, for tenants 62 or older, their rights to elect to extend their eviction period and the landlord’s duty to pay relocation benefits.

Ms. Garcia explained how the wrong dates VDG put in the Posted Notice, and VDG’s failure to insert the Filing Date in the Form E3, were each distinct reasons why the Posted Notice failed to comply with the Ellis Act. According to Ms. Garcia, it was a mistake by the HCIDLA to have approved VDG’s Ellis Act eviction of Ms. Duffy.

Ms. Garcia explained that, based on the defects in the Posted Notice that VDG served on

Ms. Duffy, the HCIDLA should have required VDG to either (a) prepare and serve Ms. Duffy with a corrected termination notice and properly completed Form E3 within the 5-day period for doing so; or (b) if the 5-day period expired without VDG having done so, the HCIDLA should have required VDG to start their Ellis Act eviction over from the start by filing a new Notice of Withdrawal and serving Ms. Duffy with a correctly drafted termination notice and complete Form E3.

As to the May 9, 2017 letter (Trial Ex. 214) that Mr. Busby of the HCIDLA sent to Mr. Feiner of VDG with regard to VDG’s eviction of Ms. Duffy, Ms. Garcia testified that the HCIDLA no longer sends such letters because the courts have the final word on whether or not a landlord’s eviction of a tenant complies with the Ellis Act. In giving testimony concerning the HCIDLA’s handling of VDG’s eviction of Ms. Duffy, Ms. Garcia mentioned that Mr. Busby no longer works for the HCIDLA. Ms. Garcia also testified that she had been Mr. Busby’s supervisor when he worked at HCIDLA.

In her testimony, Ms. Garcia was admitting that her own agency made a mistake. Ms. Garcia paid careful attention to the exhibits she was shown, and she was candid and professional in answering questions. She was very knowledgeable regarding the requirements of the Ellis Act. The Court found that Ms. Garcia was a knowledgeable and credible witness.

9. VDG’s Opportunity to Cure the Defects in the Posted Notice Before the Deadline Expired and its Failure to Do So. After VDG served Ms. Duffy with the defective Posted Notice a few days before the 5-day deadline to serve Ms. Duffy with a correct notice had expired, Ms. Duffy called the office of VDG’s lawyer, Mr. Perry. She did not speak with Mr. Perry; she spoke with someone else who answered the phone of Mr. Perry’s office. The person she spoke with advised Ms. Duffy that the wrong dates in the Posted Notice were typos and that Mr. Perry’s office would serve a corrected notice. In describing that phone call, Ms. Duffy testified that, in response to what she heard over the phone from Mr. Perry’s office, she waited to receive a corrected eviction notice and Form E3.

The Court finds credible the testimony of Ms. Duffy that, as of the deadline (i.e., January 30, 2017) by which VDG was obligated to serve Ms. Duffy with a correct eviction notice and Form E3, neither VDG nor its lawyer Mr. Perry served Ms. Duffy with anything despite Mr. Perry’s office informing her that it would send another notice to correct the typos.

Rather than adopting Defendants’ position that because Ms. Duffy learned from Mr. Perry’s office that the wrong dates were mere typos, which Defendants contend relieved VDG of responsibility for the defects in the Posted Notice, the Court finds that the converse is true. Ms. Duffy’s phone call to Mr. Perry’s office gave VDG notice that the Posted Notice was fatally defective and though VDG had time before the 5-day deadline to serve Ms. Duffy with correct documents, VDG failed to do so.

During the trial, Defendants tried to demonstrate that the wrong dates in the Posted Notice were mere typos that any reasonable person would recognize as such. However, the language of the Ellis Act made it VDG’s statutory duty to serve a correct written termination notice and a correctly filled out Form E3. The fact that Ms. Duffy suspected , knew or was told by Mr. Perry’s office that the wrong dates in the Posted Notice were typos did not negate or excuse VDG’s failure to comply with the written notice requirements of the Ellis Act.

10. VDG’s Failure to Comply with the Municipal Code and Civil Code § 1946.

The Los Angeles Municipal Code, in a section relating to the eviction of rent controlled tenants for authorized reasons, such as a landlord’s use of the Ellis Act, provides that when a landlord seeks to evict a tenant entitled to relocation benefits, as was the case for Ms. Duffy, the landlord must serve the tenant with a “written notice of termination described in California Civil Code Section 1946.” See, LAMC

§ 151.09.G.1.(d).

Civil Code § 1946 requires that a termination notice contain the parties’ names, the address of the property and the date when the tenancy will end. California courts have long held that strict compliance with eviction statutes, such as Civil Code § 1946, is the general rule. See, Kwok v. Bergen (1982) 130 Cal.App.3d 596, 599-600 (compliance with all statutory notice of termination of tenancy requirements is required), and Bevill v. Zora (1994) 27 Cal.App.4th 694, 697 (notices terminating tenancies must strictly comply with statutes).

Here, VDG’s Posted Notice failed to give notice of the correct termination date of Ms. Duffy’s tenancy, making the Posted Notice invalid under both LAMC § 151.09.G.1.(d) and Civil Code § 1946, in addition to its invalidity under other provisions of the Ellis Act.

11. Equitable Principles Do Not Aid Defendants’ Typo Argument. As set forth in Paragraph 2 of Stipulated Order “N,” the Court was sitting in equity during the Phase 1 trial. Defendants have argued that because Ms. Duffy learned the wrong dates were typos from Mr. Perry’s office, and learned the correct date for sending her election to extend the eviction period from Mr. Busby of the HCIDLA, the defects in the Posted Notice do not matter.

To the extent that Defendants were arguing that equitable principles, such as the doctrines of substantial compliance, estoppel or waiver should result in the Court finding the Posted Notice was valid, the Court does not find a basis in law to support that argument. Courts have required strict compliance in connection with eviction notices.; See, Kwok v. Bergren, supra, 130 Cal. App. 3d 596, 599–600; Briggs v. Electronic Memories & Magnetics Corp. (1975) 53 Cal. App. 3d 900, 905; Davidson v. Quinn (1982) 138 Cal. App. 3d Supp. 9, 13.

Similarly, any arguments that Ms. Duffy acquiesced to or waived the defects, or that she suffered no harm because she was able to send her election to extend her eviction period before the Ellis Act deadline, are equally unavailing. Those arguments ignore the evidence that Ms. Duffy did not acquiesce to anything.

The evidence at trial, including Ms. Duffy’s credible testimony, proved the opposite. Ms. Duffy testified that after she was served with the Posted Notice, she contacted her lawyer, Ms. Gordon, who emailed VDG’s lawyer, Mr. Perry. (Trial Ex. 212) The email specifically pointed out to Mr. Perry that the Posted Notice was “fatally defective” because it contained the wrong dates and because the Form E3 failed to state the Filing Date of VDG’s January 25, 2017 Notice to Withdraw. As opposed to acquiescing to or waiving the defects, Ms. Gordon’s email told Mr. Perry to “redraft said notice,” prepare a complete Ellis Act Form E3, and “serve it again as required by law.” (Trial Ex. 212) Telling the landlord VDG that its eviction notice was fatally defective, and demanding that it be re-drafted and served again does not reflect acquiescence or waiver, nor could such language be construed as an inducement to VDG to reasonably and justifiably believe that Ms. Duffy had agreed that VDG had the right to evict her based on the Posted Notice or that she had waived her right to a correct termination notice and Form E3.

The Court, therefore, finds none of the evidence at trial triggered any principles of equity sufficient to change its findings in favor of Ms. Duffy.

CONTROVERTED ISSUE NO. 2

With respect to the controverted issue of whether VDG complied with the Ellis Act by delivering to Ms. Duffy the escrow instructions for her relocation benefits within 15 days after service of the Posted Notice, the Court finds that VDG failed to do so, and that under the Ellis Act provisions of the Los Angeles Municipal Code, such failure is another reason why VDG’s Ellis Act eviction of Ms. Duffy was invalid.

THE FACTUAL AND LEGAL BASIS OF THE COURT’S DECISION ON CONTROVERTED ISSUE NO. 2

12. The Belated Delivery of Escrow Instructions for Relocation Benefits. The evidence on this issue was Trial Exhibit 102, a letter to Ms. Duffy from VDG’s lawyer Mr. Perry dated February 22, 2017, sending Ms. Duffy a copy of the escrow instructions after the February 11, 2017 deadline for delivering the Escrow Instructions to her. The letter stated, “It has come to our attention that you have not received a copy of the Escrow Instructions that were mailed to you on February 1, 2017. Enclosed you will find another copy.”

The credible testimony that Ms. Duffy gave on this topic was that after she was served with the Posted Notice containing the wrong dates, she called Mr. Busby of the HCIDLA because, inter alia, she had not received the Escrow Instructions for her relocation benefits. The evidence showed that Ms. Duffy had been notified in a January 27, 2017 letter from Paragon Partners, Relocation Advisor to HCIDLA, that she was entitled to receive relocation benefits from VDG and that VDG was required to either pay the benefits or give her Escrow Instructions regarding the benefits within 15 days after she was served with an eviction notice. (Trial Ex. 98) Ms. Duffy gave credible testimony that the only Escrow Instructions she ever received were the ones she received with Mr. Perry’s February 22, 2017 letter, which was dated after the February 11, 2017 deadline for delivering them to Ms. Duffy.

Despite the statement in Mr. Perry’s February 22, 2017 letter that he previously mailed the Escrow Instructions to Ms. Duffy on February 1, 2017, Defendants did not offer the February 1, 2017 letter into evidence, nor did they call Mr. Perry as a witness. The Court accepts the testimony of Ms. Duffy as true and finds that there is no persuasive evidence that Mr. Perry sent the Escrow Instructions to Ms. Duffy on February 1, 2017.

Contrary to Defendants’ assertion in their Closing Argument Brief that the failure to deliver Escrow Instructions by February 11, 2017 has no bearing on the validity of VDG’s Ellis Act eviction of Ms. Duffy, the Los Angeles Municipal Code provides otherwise.

LAMC § 151.22 states that a landlord’s failure to comply with the 15-day deadline in LAMC

§ 151.09.G.1(d) is a defense to VDG’s Ellis Act eviction of Ms. Duffy as follows:

In any action by a landlord to recover possession of a rental unit subject to the Rent Stabilization Ordinance, including, but not limited to, where an owner seeks to displace a tenant from accommodations withdrawn from rent pursuant to this chapter by an unlawful detainer proceeding, the tenant may appear and answer or demurrer…and may raise as an affirmative defense the failure of the landlord to comply with one or more of the requirements of Sections 151.22 through 151.28, as well as the failure of the landlord to comply with any other requirements of this Chapter.

As used in LAMC § 151.22, which provides any violation by a landlord “of this Chapter” establishes a defense to “any action by a landlord to recover possession,” the Chapter that Section 151.22 is found in is LAMC Chapter XV. Chapter XV spans LAMC §§ 151.00 to 151.31, which include the 15-day deadline to deliver escrow instructions found in LAMC § 151.09.G.1(d).

Not only does LAMC § 151.22 provide that any violation of Chapter XV establishes a defense to “any action by a landlord to recover possession” in general terms, Section 151.22 also provides that the defense applies to Ellis Act evictions. It states that the defense applies to any failure by the landlord to comply with this Chapter “where an owner seeks to displace a tenant from accommodations withdrawn from rent pursuant to this chapter” (i.e., the Ellis Act), and then makes clear that the defense applies to any “failure of the landlord to comply with one or more of the requirements of Sections 151.22 through 151.28.” A preceding portion of LAMC § 151.22 makes it clear that Sections 151.22 through 151.28 are the Ellis Act, as it is implemented in Los Angeles. It states:

“SEC. 151.22.  ELLIS ACT PROVISIONS - STATEMENT OF PURPOSE AND EFFECT.

…It is the purpose of this section, and Sections 151.23 through 151.28, to implement provisions of the Ellis Act. The Department may develop forms and regulations to assist in the implementation of these provisions.”

Thus, the failure of VDG to timely deliver Escrow Instructions to Ms., Duffy does bear on the validity of its Ellis Act eviction, and that failure alone is a defense to any action to recover possession from Ms. Duffy by reason of LAMC § 151.22.

CONTROVERTED ISSUE NO. 3

With respect to the controverted issue of whether the cover letter and eviction notice, inclusive of the Ellis Act Form E3 attached to it, mailed to Ms. Duffy on March 23, 2017 by VDG’s lawyer,

Mr. Perry, was a valid Ellis Act eviction notice, VDG took the position in its still-pending Unlawful Detainer Complaint filed in February 19, 2018 (Related Action LASC Case No. 18STUD01617), which under the terms of Stipulated Order “N” could still go to trial under certain circumstances, that the March 23, 2017 notice backdated to January 25, 2017 that it attached to its verified Unlawful Detainer Complaint was in fact the Ellis Act eviction notice on which it had the right to evict Ms. Duffy.

In addition, VDG took the position that such March 23, 2017 notice backdated to January 25, 2017 was an operative eviction notice during the pendency of this action. However, at page 9, lines 8-9, of Defendants’ Trial Phase 1 Closing Argument Brief filed on March 6, 2020, Defendants took the position that such termination notice and Form E3 was not the operative Ellis Act eviction notice, and characterized it as a courtesy copy.

Defense counsel confirmed that was the position of Defendants at the oral closing argument on August 3, 2020. The Court accepts Defendants’ representation at the oral closing argument that VDG is no longer claiming such notice was an operative Ellis Act eviction notice. Consequently, the Court renders a finding that the March 23, 2017 eviction notice (inclusive of the Form E3 attached to it) was invalid.

THE FACTUAL AND LEGAL BASIS OF THE COURT’S DECISION ON CONTROVERTED ISSUE NO. 3

14. The Backdated Notice. On March 23, 2017, VDG’s lawyer, Mr. Perry, created a new and different termination notice stating it terminated Ms. Duffy’s tenancy, and a new and different Ellis Act Form E3 (jointly, the “Backdated Notice”). The Backdated Notice differed from the Posted Notice in that Mr. Perry corrected all the wrong dates and filled-in the Filing Date on Form E3. (The Backdated Notice was admitted as Trial Exhibits 104 and 171; the Court initially admitted it as Trial Exhibit 104 and later admitted another copy, Trial Exhibit 171, the only difference being that Trial Exhibit 171 is a copy that was obtained by subpoena from the Housing Department.)

Mr. Perry’s cover letter admitted that even though he was sending the new notice and Form E3 to Ms. Duffy on March 23, 2017, he had backdated the enclosed notice to January 25, 2017, i.e., the correct Filing Date. (Trial Exs. 104 and 171) With respect to the Backdated Notice, Mr. Perry and VDG did not follow the statutorily prescribed methods in Code of Civil Procedure § 1162(a) for service of an eviction notice. Mr. Perry merely mailed it, and Ms. Duffy gave credible testimony that she received it in the mail a few days after March 23, 2017, and not by any other means. When Mr. Perry mailed the Backdated Notice to Ms. Duffy on March 23, 2017, the deadline for VDG to serve Ms. Duffy with a notice terminating her tenancy had expired 52 days earlier on January 30, 2017.

The verified Unlawful Detainer Complaint (the “UD Complaint”) that VDG filed against

Ms. Duffy on February 19, 2018 in the Related Action, which is still pending as a lawsuit before this Court (subject to a stay), did not attach the Posted Notice as the operative eviction notice. Rather, it attached the Backdated Notice. Because the 5-day period to serve Ms. Duffy with an eviction notice and Form E3 had expired on January 30, 2017, the Court finds that the Backdated Notice was invalid under the Ellis Act because it was never served before the January 30, 2017 deadline.

CONTROVERTED ISSUE NO. 4

With respect to the controverted issue raised by Ms. Duffy that, even if the Posted Notice or Backdated Notice are valid, she still has a defense to being evicted under the Ellis Act under the holding of Hilaly v. Allen (2019) 36 Cal.App.5th Supp. 12, 17, because VDG changed the terms of her Rental Agreement concerning her parking rights after the Filing Date of the Notice to Withdraw, the Court does not so find.

THE FACTUAL AND LEGAL BASIS OF THE COURT’S DECISION ON CONTROVERTED ISSUE NO. 4

16. The Hilaly Defense was not proven. Ms. Duffy failed to establish that any conduct by VDG constituted a change in the terms of her tenancy. More specifically, Ms. Duffy did not present evidence other than her impression that either or both of the children of Mr. Feiner were the agents for VDG with regard to the use of parking spaces or allowing access by internet providers. Additionally, Ms. Duffy did not present evidence of any ratification of any conduct of the children of Mr. Feiner by VDG.

STIPULATED ISSUE NO. 5

In accordance with paragraph 7 of Stipulated Order N, the Court finds that Ms. Duffy’s lease is not terminated and remains in full force and effect, and Ms. Duffy is entitled to continue in possession of her leased premises, subject to the provisions of her lease and subject to VDG’s right to seek the future eviction of Ms. Duffy by filing a new Ellis Act application with the HCIDLA.

CONCLUSION

1. Ms. Duffy is entitled to Judgment on this Statement of Decision, which Judgment shall be entered at the time set forth in Stipulated Order “N.”

2. This Statement of Decision has provided the factual and legal basis thereof in the separate sections on each controverted issue for convenience only. In the event of appellate review of this Statement of Decision, the document is intended as an integrated document with each part informing the other, regardless of topic headings.

3. In addition to the legal basis for its findings described above, the Court’s findings are also based upon its role during the Phase 1 trial as the trier of fact who had the benefit of having seen the demeanor of the witnesses and the credible testimony of Ms. Duffy and Ms. Garcia.

Dated: September 28, 2020 By:

TERESA A. BEAUDET

JUDGE OF THE LOS ANGELES SUPERIOR COURT


[1] The Ellis Act enables cities to adopt ordinances to implement the Act. Govt. Code § 7060.4(a)-(c). In Los Angeles, the City Council has adopted Sections 151.22 through 151.28 of the Municipal Code to implement the Act and authorized the Housing Department to develop its own Ellis Act forms (such as Forms E2 and E3 discussed in this Statement of Decision). LAMC § 151.22.

[2] The Posted Notice was initially admitted into evidence as Trial Exhibit 96. At the request of Ms. Duffy and without objection by Defendants, the Court admitted another copy as Trial Exhibit 170 which had been obtained by subpoena from the Housing Department. The only difference being that Trial Exhibit 170 contains the Proof of Service showing it was posted on Ms. Duffy’s door on January 27, 2017, which was consistent with Ms. Duffy’s testimony concerning the service date.

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