Judge Michael E. Whitaker, Case Number: 24SMCV01140, Date: 2024-03-20 Tentative Ruling

Judge: Michael E. Whitaker, Case: 24SMCV01140, Date: 2024-03-20 Tentative Ruling

This case arises from a dispute concerning the residence Plaintiff Sanaz Afsar[1] (“Plaintiff”) has leased from Defendant Dust Bowl Real Estate LLC (“Defendant”) for the past four years. Following a fire on March 3, 2024, which damaged the garage and part of the laundry room, Plaintiff discovered gas leaks and mold on the premises. Plaintiff has had the gas turned off and has temporarily relocated herself and her two small children down the street, pending the remediation of soot in the home, which is estimated to take six days, but has otherwise continued to timely make all rent payments, and returns to the home daily to retrieve clothing, etc.

Plaintiff has filed suit, alleging that Defendant is now improperly trying to evict and lock Plaintiff out of the residence. Plaintiff has now filed an ex parte application for a temporary restraining order and order to show cause why a preliminary injunction should not issue during the pendency of the litigation to prevent Defendant from pursuing the threatened lock-out/forcible detainer during the pendency of this action.

A party seeking a TRO must establish “(1) irreparable injury to the moving party without the TRO; (2) no harm to the public interest; (3) no substantial harm to other interested parties; and (4) a likelihood of prevailing on the merits.” (Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal.App.4th 225, 243.)

Pursuant to Code of Civil Procedure section 527, subdivision (a), “[a] preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor.” (Code Civ. Proc., § 527, subd. (a).) “The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial.” (Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.) Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016; Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.)

The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc., § 526, subd. (a).) The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866-67.)

“The decision to grant a preliminary injunction rests in the sound discretion of the trial court ... before the trial court can exercise its discretion the applicant must make a prima facie showing of entitlement to injunctive relief. The applicant must demonstrate a real threat of immediate and irreparable injury.” (Triple A Machine Shop, Inc. v. State of Cal. (1989) 213 Cal.App.3d 131, 138.) “[A]n injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff,” and the party seeking injunctive relief bears the burden to prove its absence. (Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1564-1565.)

“The hardship, if any, to defendant in requiring him to show that his desire to evict someone is motivated by a legitimate reason is insignificant when compared to the irreparable harm plaintiffs will suffer if they […] are evicted.” (Hernandez v. Stabach (1983) 145 Cal.App.3d 309, 315.) Thus, in the absence of Defendant demonstrating some countervailing irreparable harm, because Plaintiff is being threatened with eviction, Plaintiff has demonstrated an irreparable harm that outweighs the hardship, if any, to Defendant of first litigating the legitimacy of the threatened eviction or lock-out.

A TRO or preliminary injunction may not issue unless it is “reasonably probable that the moving party will prevail on the merits. (San Francisco Newspaper Printing Co., Inc. v. Superior Court (1985) 170 Cal.App.3d 438, 442; see Costa Mesa City Employees’ Association v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 309 [no injunction may issue unless there is at least “some possibility” of success].)

On March 10, after Plaintiff had an investigator examine the home, who discovered several gas leaks and mold in the walls, Plaintiff emailed Defendant notifying Defendant of the mold. (Ex. F to Kashani Decl.)

Your rent was received on Thursday, March 8th, and it is being refunded to you because you and your family are no longer occupying the premises after of [sic] the fire. What is your present address so that the rent refund can be mailed directly to you? Please reconfirm that you have had all utilities turned off as well as you stated to me.

We do not intend to relinquish occupancy. The premises can be restored to occupiable condition in 6 days once work starts. If the work starts immediately I will not ask for a pro-rata of rent for the few missing days.

On March 13, 2024, Defendant sent Plaintiff a sixty-day notice to quit, pursuant to Civil Code section 1946.1, and citing paragraph 28 of the lease agreement. Section 1946.1 provides:

(a) Notwithstanding Section 1946, a hiring of residential real property for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of his or her intention to terminate the tenancy, as provided in this section.

(b) An owner of a residential dwelling giving notice pursuant to this section shall give notice at least 60 days prior to the proposed date of termination. A tenant giving notice pursuant to this section shall give notice for a period at least as long as the term of the periodic tenancy prior to the proposed date of termination.

28. DAMAGE TO PREMISES: If, by no fault of Tenant, Premises are totally or partially damaged or destroyed by fire, earthquake, accident or other casualty that render Premises totally or partially uninhabitable, either Landlord or Tenant may terminate this Agreement by giving the other written notice. Rent shall be abated as of the date Premises become totally or partially uninhabitable. The abated amount shall be the current monthly Rent prorated on a 30-day period. If the Agreement is not terminated, Landlord shall promptly repair the damage, and Rent shall be reduced based on the extent to which the damage interferes with Tenant’s reasonable use of Premises. […]

The March 11 email suggests Defendant may have been trying to deem the property abandoned, and the March 13 notice to quit appears to be invoking Defendant’s right to terminate the lease agreement, pursuant to the no fault damage clause of paragraph 28 of the lease and Civil Code section 1946.1.

(b) Real property shall be deemed abandoned by the lessee, within the meaning of Section 1951.2, and the lease shall terminate if the lessor gives written notice of belief of abandonment as provided in this section and the lessee fails to give the lessor written notice, prior to the date of termination specified in the lessor's notice, stating that the lessee does not intend to abandon the real property and stating an address at which the lessee may be served by certified mail in any action for unlawful detainer of the real property.

(c) The lessor may give a notice of belief of abandonment to the lessee pursuant to this section only where the rent on the property has been due and unpaid for at least 14 consecutive days and the lessor reasonably believes that the lessee has abandoned the property. The date of termination of the lease shall be specified in the lessor's notice and shall be not less than 15 days after the notice is served personally or, if mailed, not less than 18 days after the notice is deposited in the mail.

(Civ. Code, § 1951.3, subd. (b) & (c).) As Plaintiff points out, here, the rent was never unpaid, much less for 14 consecutive days, and Plaintiff immediately responded to Defendant’s email, indicating that Plaintiff did not abandon the property. Thus, to the extent Defendant is attempting to evict Plaintiff on the basis of abandonment, Plaintiff is likely to prevail.

(a) Notwithstanding any other law, after a tenant has continuously and lawfully occupied a residential real property for 12 months, the owner of the residential real property shall not terminate the tenancy without just cause, which shall be stated in the written notice to terminate tenancy. […]

(b) For purposes of this section, “just cause” includes either of the following:

(A)(i) Intent to occupy the residential real property by the owner or their spouse, domestic partner, children, grandchildren, parents, or grandparents.

(ii) For leases entered into on or after July 1, 2020, or July 1, 2022, if the lease is for a tenancy in a mobilehome, clause (i) shall apply only if the tenant agrees, in writing, to the termination, or if a provision of the lease allows the owner to terminate the lease if the owner, or their spouse, domestic partner, children, grandchildren, parents, or grandparents, unilaterally decides to occupy the residential real property. Addition of a provision allowing the owner to terminate the lease as described in this clause to a new or renewed rental agreement or fixed-term lease constitutes a similar provision for the purposes of subparagraph (E) of paragraph (1).

(I) An order issued by a government agency or court relating to habitability that necessitates vacating the residential real property.

(II) An order issued by a government agency or court to vacate the residential real property.

(III) A local ordinance that necessitates vacating the residential real property.

(ii) If it is determined by any government agency or court that the tenant is at fault for the condition or conditions triggering the order or need to vacate under clause (i), the tenant shall not be entitled to relocation assistance as outlined in paragraph (3) of subdivision (d).

(D)(i) Intent to demolish or to substantially remodel the residential real property.

(ii) For purposes of this subparagraph, “substantially remodel” means the replacement or substantial modification of any structural, electrical, plumbing, or mechanical system that requires a permit from a governmental agency, or the abatement of hazardous materials, including lead-based paint, mold, or asbestos, in accordance with applicable federal, state, and local laws, that cannot be reasonably accomplished in a safe manner with the tenant in place and that requires the tenant to vacate the residential real property for at least 30 days. Cosmetic improvements alone, including painting, decorating, and minor repairs, or other work that can be performed safely without having the residential real property vacated, do not qualify as substantial rehabilitation.

(c) Before an owner of residential real property issues a notice to terminate a tenancy for just cause that is a curable lease violation, the owner shall first give notice of the violation to the tenant with an opportunity to cure the violation pursuant to paragraph (3) of Section 1161 of the Code of Civil Procedure. If the violation is not cured within the time period set forth in the notice, a three-day notice to quit without an opportunity to cure may thereafter be served to terminate the tenancy.

(d)(1) For a tenancy for which just cause is required to terminate the tenancy under subdivision (a), if an owner of residential real property issues a termination notice based on a no-fault just cause described in paragraph (2) of subdivision (b), the owner shall, regardless of the tenant's income, at the owner's option, do one of the following:

(A) Assist the tenant to relocate by providing a direct payment to the tenant as described in paragraph (3).

(B) Waive in writing the payment of rent for the final month of the tenancy, prior to the rent becoming due.

(2) If an owner issues a notice to terminate a tenancy for no-fault just cause, the owner shall notify the tenant of the tenant's right to relocation assistance or rent waiver pursuant to this section. If the owner elects to waive the rent for the final month of the tenancy as provided in subparagraph (B) of paragraph (1), the notice shall state the amount of rent waived and that no rent is due for the final month of the tenancy.

(3)(A) The amount of relocation assistance or rent waiver shall be equal to one month of the tenant's rent that was in effect when the owner issued the notice to terminate the tenancy. Any relocation assistance shall be provided within 15 calendar days of service of the notice.

(B) If a tenant fails to vacate after the expiration of the notice to terminate the tenancy, the actual amount of any relocation assistance or rent waiver provided pursuant to this subdivision shall be recoverable as damages in an action to recover possession.

(C) The relocation assistance or rent waiver required by this subdivision shall be credited against any other relocation assistance required by any other law.

(4) An owner's failure to strictly comply with this subdivision shall render the notice of termination void.

Here, the sixty-day notice to quit does not specify any “just cause” listed in section 1946.2. As such, Defendant does not appear to have strictly complied with the statutory requirements, rendering the sixty-day quit notice potentially void.

(a) If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee’s rights under this chapter or because of the lessee’s complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following:

(1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, has provided notice of a suspected bed bug infestation, or has made an oral complaint to the lessor regarding tenantability.

(2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.

(3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice.

(4) After the filing of appropriate documents commencing a judicial or arbitration proceeding involving the issue of tenantability.

(5) After entry of judgment or the signing of an arbitration award, if any, when in the judicial proceeding or arbitration the issue of tenantability is determined adversely to the lessor.

In each instance, the 180-day period shall run from the latest applicable date referred to in paragraphs (1) to (5), inclusive.

(Civ. Code, § 1942.5, subd. (a).) Because Defendant sent Plaintiff the email purporting to evict on the basis of abandonment the day after Plaintiff emailed Defendant about the mold and then sent Plaintiff the sixty-day quit notice two days later, Defendant’s eviction attempts appear to be retaliatory.

Therefore, Plaintiff is likely to prevail on the merits that an attempt to evict based on section 28 of the lease agreement and Civil Code section 1946.2 is similarly invalid.

As such, Plaintiff appears likely to prevail on the merits of demonstrating that the actions Defendant took in attempting to evict Plaintiff were improper.

Therefore, because the Court finds that Plaintiff has demonstrated an immediate and irreparable harm (eviction) that outweighs any harm to Defendant and a likelihood of success on the merits of demonstrating that the actions Defendant took in attempting to evict Plaintiff were improper, the Court grants Plaintiff’s motion for a temporary restraining order and sets an order to show cause why a preliminary injunction should not issue for May 8, 2024 at 8:30 A.M. in Department 207.

· Plaintiff shall and file serve her opening memorandum of points and authorities in support of the preliminary injunction on or before April 3, 2024.

· Defendant may then file and serve its memorandum of points and authorities in opposition to the preliminary injunction on or before April 17, 2024.

· Plaintiff may then file her memorandum of points and authorities in in reply to any opposition on or before May 1, 2024.

Further, the Court orders all parties to lodge courtesy copies of their papers in Department 207.

Plaintiff shall prepare a proposed order in conformity with the Court’s ruling by no later than March 22, 2024, and provide notice of the Court’s ruling forthwith.

[1] The complaint asserts that Sanaz Kashani is the complainant, not Sanaz Afsar. The correct name of the plaintiff will need to addressed and rectified.

DEPARTMENT	207
HEARING DATE	March 20, 2024
CASE NUMBER	24SMCV01140
MOTION	Ex Parte Application for TRO and OSC re: Preliminary Injunction
MOVING PARTY	Plaintiff Sanaz Afsar
OPPOSING PARTY	None