Judge: Mark C. Kim, Case: 22LBUD01262, Date: 2023-01-24 Tentative Ruling

Case Number: 22LBUD01262    Hearing Date: January 24, 2023    Dept: S27

1.     Trial

This landlord-tenant dispute concluded trial by jury on 11/17/22.  The jury found the defendant failed to pay rent during the subject period, but also found the plaintiff failed to provide premises in a habitable condition.  The jury reduced the amount of rent owed by the defendant to the plaintiff based on the proportional value of the property in light of its condition. 

2.     Motion for Attorneys’ Fees and Interest

a.     Initial Note

Defendant filed this motion on 1/03/23, setting it for hearing on 1/24/23, only fourteen court days later.  Defendant’s notice of motion includes a highlighted caption indicating the date was approved by the court clerk’s office on 12/12/22.  Defendant fails, however, to show that the clerk’s office or anyone else shortened the required notice period for hearing on the motion.  Plaintiff did not, in opposition to the motion, raise the timeliness issue, and therefore the Court will rule on the motion on its merits.

b.     Contractual Attorneys’ Fees in the Amount of $500

Defendant seeks to recover $500 in attorneys’ fees pursuant to the parties’ contract.  Plaintiff, in opposition to the motion, does not contest Defendant’s right to recover $500 in contractual attorneys’ fees.  The request is therefore granted.

c.     Attorneys’ Fees Pursuant to Civil Code §1942.4

i.              Parties’ Positions

Defendant also seeks to recover attorneys’ fees pursuant to CCP §1174.21 and Civil Code §1942.4.  §1174.21 permits recovery of attorneys’ fees if a landlord institutes an unlawful detainer proceeding based on nonpayment of rent when the landlord is liable for a violation of §1942.4; §1942.4 makes a landlord liable to a tenant if a public officer inspects the premises and gives the landlord written notice that it must abate a nuisance or repair and property, and the landlord fails to do so within 35 days. 

Defendant contends the property remained in violation of a DPH citation from the date it was issued forward, up to and including the date the jury returned the verdict.  Defendant therefore contends Plaintiff failed to abate the nuisance at the property within 35 days of being given notice to do so, such that Defendant is entitled to an award of attorneys’ fees. 

Plaintiff, in opposition to the motion, contends all conditions cited in the notice were abated prior to reinspection of the property, which occurred on 9/03/21, and also that there is no evidence substandard conditions existed at the time the three-day notice was served and/or that the conditions cited in the report were not abated within 35 days after notice was given. 

ii.             Evidence

Defendant provides a copy of an inspection report from the Department of Public Health, which is dated 7/02/21.  The inspection report shows Plaintiff was cited due to cockroaches throughout the unit, with the recommendation to inspect the unit for holes and gaps, treat the unit and adjacent units to eliminate the roaches, and schedule recurring treatments to prevent reinfestation.  The report also shows Plaintiff was cited for problems with sewer and drain lines, with corrective action needed to repair or replace all leaking, stopped up, or otherwise faulty sewer and drain lines, which included loose pipes in the kitchen and bathroom p-trap.  Defendant declares that those problems remained ongoing throughout the lease, and that Plaintiff, after trial, was ordered to cure the problems. 

The Court has reviewed its 11/17/22 minute order after jury trial, which includes a statement that, “Order to Show Cause re: Repairs, fumigation, and sink issue is scheduled for 12/14/22…”  The Court has also reviewed its 11/30/22 minute order, which reflects a hearing on an OSC re: repairs, fumigation, and sink issue; the Court found Plaintiff presented evidence that it had cured both issues, and discharged the OSC. 

In opposition to the motion, Plaintiff provides the Declaration of Alfred Padilla, its agent.  Padilla declares that re-inspection was scheduled for 7/23/21, and within a week after the original inspection, Plaintiff scheduled a pest control company and a plumber to address the items listed in the report.  He declare the reinspection did not go forward on 7/23/21, and provides, as Exhibit 4 to the opposition, a 9/03/21 inspection report showing no violations. 

iii.            Analysis

Civil Code §1942.4(a) provides:

(a) A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord's demand or notice:

(1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

(2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord's agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

(3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

(4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.

This is a difficult issue.  It appears that Plaintiff cured the defects after the original report, at least sufficiently such that the DPH allowed the property to pass reinspection and deemed the defects cured.  It appears, however, that the defects were either not properly cured and/or recurred after the reinspection, such that at the time of trial, the defects were present again.  The issue before the Court is the effect of the reinspection report; specifically, the Court must determine whether a landlord can be found in violation of §1242.4 if the property passes reinspection, but the violation has not truly been cured.  The Code itself is not clear on this issue, and neither party cites authority on the issue.  The Court has reviewed the Code Annotated, and did not find authority on the issue there either. 

The Court is inclined to find that the evidence presented at trial was sufficient for a jury to find cockroach infestation and ongoing plumbing problems justified nonpayment of rent during the subject period, and also that the infestation and plumbing problems remained ongoing at the conclusion of the trial such that an OSC re: remediation was necessary.  This shows that the problems resulted in a citation, that the problems were not remedied within 35 days, that the problems were ongoing when the notice to quit and UD proceedings were initiated, and that the problems were not the fault of the tenant.  The Court is particularly swayed by the fact that the original inspection report makes clear that the obligation to fumigate is an ongoing one, not one that can be cured by hiring someone to fumigate a single time.  The Court is therefore inclined to award attorneys’ fees.

d.     Amount of Fees

The final issue is the amount of fees to be awarded.  Defendant seeks to recover $13,790 in fees, which amount is supported by the Declaration of Counsel, Jonathan Segura, who bills at the reasonable rate of $350/hour and provides detailed billing records of the 39.4 hours he spent working on this case.  Plaintiff does not meaningfully dispute the reasonableness of the fees requested by way of opposition, and therefore the request is granted in full. 

e.     Conclusion

Defendant’s motion for attorneys’ fees is granted.  Plaintiff is ordered to pay $13,790 in attorneys’ fees to Defendant. 

Defendant is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.