Does Non-Compliance with City Ordinance Bar Summary Judgment for Plaintiff?

In the recent California appellate decision in Alonso v. Herrera, Plaintiff Guadalupe Alonso prevailed on summary judgment in an unlawful detainer action brought on the grounds that defendant Carmen Herrera failed to pay rent, but the case was adjudicated in plaintiff’s favor on the basis that the garage was purportedly being used as an unpermitted dwelling unit without a certificate of occupancy.

The appellate court held that absent an amendment to the complaint, summary judgment was not available to plaintiff on grounds that contradicted the basis alleged in the complaint, and that plaintiff’s non-compliance with a city ordinance—an affirmative defense—was not a valid basis to award judgment in favor of plaintiff.

On August 5, 2024, plaintiff filed an unlawful detainer complaint against defendant and Antonio Gaspar, concerning a garage being used as a dwelling unit in the City of Maywood.

Defendant filed an amended answer on August 21 and demanded a jury trial. On October 21, the court scheduled a hearing for October 31 to hear plaintiff’s discovery motions and her anticipated motion for summary judgment.

On October 23, plaintiff filed a notice and motion for summary judgment with a memorandum of points and authorities, a declaration of plaintiff and his daughter, a three-day notice to pay rent or quit purportedly served on July 9, an August 14 notice of inspection and order to correct violations purportedly issued by the City of Maywood, and proof of service of the motion.

The notice of inspection listed nine violations related to the property, including an unpermitted occupancy of the garage as a dwelling without a certificate of occupancy.

Relying on the decision in Gruzen v. Henry, plaintiff argued that because the garage was unpermitted and did not have a certificate of occupancy, the lease was void and plaintiff was therefore entitled to a possession-only judgment.

Both parties appeared for the hearing, and the court’s tentative ruling was to grant the motion for summary judgment, noting “this is a factual issue. It’s not a question of law. You know the facts of this case; they’re not very complex. . . . [¶] . . . after reading [the motion] you could come up with a triable issue of fact so that I would deny it and we can go to the jury trial, . . .”

Defendant requested a day or two to file a written opposition to the motion.

The court denied the request for a continuance and afforded defense counsel two and one-half hours to prepare an oral opposition to the motion.

That afternoon, the court heard argument on the summary judgment motion. Plaintiff argued, “[t]his case falls exactly under Gruzen . . . that any contract for any illegal use is void ab initio. And the evidence in our declarations prove that the garage is not . . . legally used as a residence. . . . [¶] Therefore, exactly under Gruzen . . . , we have the elements of an agreement, which is void, default in payment of rent, service of the notice, and continued possession.”

Defendant did not dispute that the unit was unlawful, but instead argued that summary judgment was unsuitable because plaintiff’s theory of her right to possession—an unlawful rental unit—conflicted with the theory alleged in the complaint for failure to pay rent due under the lease, and plaintiff “can’t just [a]mend the complaint now to state that this is an illegal unit and that the contract is void because there’s a lack of a certificate of occupancy.”

Defendant also contended there were triable issues of material fact as to whether the elements of an unlawful detainer for failure to pay rent were met given that plaintiff conceded the lease was void, there was no default in rent, and the Maywood ordinance prohibiting no-fault evictions applied to unpermitted units.

Defendant further posited Gruzen was inapplicable to this case, and the decision in North 7th Street Associates v. Constante was the controlling precedent: “Both in [North 7th Street] and in this case, the property at issue does not possess a certificate of occupancy. And furthermore, the court in [North 7th Street] stated that Gruzen was never asked to decide whether the three-day notice was fatally defective [sic], which is one of the defenses that my client is arguing, that the notice is defective as it is overstated.”

Plaintiff replied that defendant “cannot use any of these defenses in order to stay there. Once you’ve got an illegal unit, you’re not supposed to be there. That’s why we’re not demanding any rent because the contract is void.”

Relying on Gruzen and distinguishing this case from North 7th Street, the trial court found the lease was void and granted summary judgment in favor of plaintiff and against defendant for possession of the premises.

Defendant contended the trial court erroneously granted summary judgment on a ground that was not raised in the complaint and contradicted the basis for the complaint. Defendant further argued that plaintiff was not entitled to a possession judgment due to the status of the garage as an “illegal unit”—an affirmative defense under the Maywood Municipal Code and case law.

The appellate court agreed with both claims of error.

The purpose of a motion for summary judgment is to allow the court to penetrate through the parties’ pleadings to ascertain whether there are triable issues warranting a trial.

Because summary judgment is considered a drastic remedy, it is important that all of the procedural requirements for the granting of such a motion be satisfied before the trial court grants the remedy.

A party is entitled to summary judgment only if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. A plaintiff seeking summary judgment must prove each element of the cause of action and that there is no viable defense thereto. The court ruling on a motion for summary judgment may only examine the pleadings in order to define the issues of which summary judgment disposes.

A landlord cannot prevail on a theory contradicting the basis of the complaint.

In a civil action, the complaint serves to frame and limit the issues and to apprise the defendant of the basis upon which the plaintiff is seeking recovery.

A plaintiff who wants to introduce theories not encompassed in the operative complaint must seek leave to amend the complaint at or prior to the hearing on a summary judgment motion, and absent a request for amendment the court has no occasion to adjudicate issues not raised in the pleadings.

To satisfy the elements of the unlawful detainer cause of action, plaintiff had to prove that defendant defaulted in her obligation to pay rent, the default continued after defendant was properly served with a written three-day notice to pay rent or quit, and defendant remained in possession without plaintiff’s consent.

When the tenant continues in possession, service of a valid three-day notice to pay rent or quit is a prerequisite to an unlawful detainer action.  The notice’s purpose is to inform the tenant of the breach so the tenant can rationally choose whether to cure the breach and retain possession, quit the property, or contest the allegations.

In the case, it is undisputed the basis for plaintiff’s complaint was that defendant failed to tender unpaid rent or quit possession of the premises following service of the three-day notice to pay rent or quit on July 9.

Without requesting leave to amend the complaint, plaintiff’s motion was premised upon a different theory—that “no rent [wa]s owed” because the lease was void due to the absence of a certificate of occupancy.

Because this new theory was not encompassed in plaintiff’s complaint, which was limited to nonpayment of rent, defendant did not have an opportunity to answer plaintiff’s new claim of entitlement to possession due to the illegal status of the unit.

The record unambiguously confirmed that plaintiff’s complaint only alleged the right to possession due to defendant’s alleged failure to pay rent. The three-day notice, which was included in the record, demanded past-due rent of $9,100 for the months between January and July 2024.

Plaintiff’s trial brief maintained she was entitled to judgment “of unlawful detainer for non- payment of rent,” and the motion for summary judgment asserted “[t]his unlawful detainer case was filed . . . based on non-payment of rent and service of a 3 day notice to pay rent or quit.”

Moreover, plaintiff never challenged the defense’s argument, during the hearing on the summary judgment motion, that the sole basis for the complaint was non-payment of rent.

The totality of the circumstances constitutes a concession by plaintiff that the complaint only claimed the right to possession due to defendant’s alleged failure to pay rent.

Defendant was not afforded the opportunity to meaningfully decide whether to cure the alleged breach, to quit possession of the premises, or to contest the allegations and be heard on the dispositive theory of eviction.

Even ignoring the aforementioned procedural deficiency, plaintiff was not entitled to summary judgment based on her own violation of a tenant protection ordinance which serves asan affirmative defense. 

A tenant is guilty of unlawful detainer only if the landlord proves the tenant falls within any of the circumstances enumerated in Civil Code section 1161.

Plaintiff’s motion did not allege the right to possession on any grounds in section 1161; instead, plaintiff argued, and the trial court agreed, she was entitled to possession due to the illegality of the dwelling.

This was plainly wrong.

Also at oral argument, plaintiff contended the action was authorized under Civil Code section 1161, subdivision (4), as a waste or nuisance of the property.

Apart from plaintiff’s failure to plead this ground in the complaint, the facts adduced in the summary judgment papers revealed that plaintiff’s act of renting the garage unit without a permit and certificate of occupancy was unlawful.

There was no allegation that defendant maintained, committed or permitted the maintenance or commission of waste or a nuisance to trigger this provision of section 1161.

The Maywood Municipal Code prohibits a lessor from demanding or accepting rent for a “covered rental unit” without first obtaining a registration statement and properly serving or displaying the proof of registration.

A lessor’s failure to comply with the registration obligations subjected her to potential civil liability and administrative citations.

Additionally, a tenant may assert as an affirmative defense a landlord’s failure to comply with the provisions of this chapter in any action by a landlord to recover possession of a rental unit.

It was undisputed that defendant’s lease was for an illegal unit. As a result, the three-day notice claiming past-due rent was necessarily an overstatement of defendant’s rental obligation, and since the three-day notice which was the basis for this unlawful detainer action failed to comply with the strict statutory requirements, it was invalid and could not support the action.

The invalid three-day notice was fatal to plaintiff’s cause of action.

Furthermore, as an affirmative defense, the unlawful status of the garage rental could be relied upon only by defendant to defeat plaintiff’s claim of right to possession.

Affirmative defenses may be asserted only to the extent they might defeat the landlord’s right to possession. A lessor’s(i.e., landlord – owner) violation of a tenant protection ordinance does not provide a basis for the lessor to prevail in an unlawful detainer action.

A plaintiff is barred from collecting any rent or using the unlawful detainer procedures to enforce the collection of rent if the plaintiff is in violation of an ordinance requiring a certificate of occupancy, which is a defense to an action in unlawful detainer.

Settled maxims of jurisprudence prevented plaintiff from using her violation of the Maywood Municipal Code as a sword to prevail in this unlawful detainer action.

No one can take advantage of their own wrong, and courts will not lend assistance to persons whose claim for relief rests on an illegal transaction.

Plaintiff, as the lessor, was not entitled to rely on an affirmative defense as a basis for summary judgment.

When a judgment is reversed on appeal, the appealing party is generally entitled to restitution for all rights and property lost by reason of the erroneous judgment.

Even if the reviewing court has not ordered restitution, the trial court whose order or judgment has been reversed on appeal has the inherent authority to afford restitutionary relief.

When a landlord who has secured a writ of possession evicts a tenant before the appellate rights of the tenant have been exhausted, the landlord assumes the risk it will be subject to a full accounting and restitution if the judgment granting the writ of possession is reversed on appeal.

As a practical matter, however, in most unlawful detainer cases that are reversed on appeal, courts are not apt to reinstate the tenant’s right to possession of the premises when a significantamount of time has gone by during the pendency of the appeal, particularly if the lessor has already leased or sold the property.

LESSONS: 

1.         A landlord cannot prevail on a theory contradicting the basis of the complaint.

2.         To satisfy the elements of the unlawful detainer cause of action, plaintiff had to prove that defendant defaulted in her obligation to pay rent, the default continued after defendant was properly served with a written three-day notice to pay rent or quit, and defendant remained in possession without plaintiff’s consent.

3.         Affirmative defenses may be asserted only to the extent they might defeat the landlord’s right to possession. A lessor’s (i.e., landlord – owner) violation of a tenant protection ordinance does not provide a basis for the lessor to prevail in an unlawful detainer action.

4.         No one can take advantage of their own wrong, and courts will not lend assistance to persons whose claim for relief rests on an illegal transaction.