TO PLAINTIFF AND PLAINTIFF’S ATTORNEY OF RECORD:
PLEASE TAKE NOTICE that on May 9, 2001, at 8:30 a.m., or as soon thereafter
as the matter may be heard, in Division 107 of the above-entitled court, located
at 14400 Erwin Street Mall, Van Nuys, California, defendant Ralph Frenette will
and hereby does move this Court for an order granting summary judgment herein.
The motion is addressed to plaintiff Carlos Barrantes.
Defendant's motion is made on the ground that plaintiff is improperly
terminating defendant's tenancy based on a 3-day notice that overstates the
amount of rent due. Plaintiff failed to give defendant the requisite 90 days’
written notice that plaintiff was not renewing defendant’s Section 8 contract.
Civil Code § 1954.535. Plaintiff also failed to give defendant the requisite 60
days’ written notice that plaintiff was increasing defendant’s rent by more
than ten percent. Civil Code § 827(b)(3). Plaintiff is therefore barred from
demanding the full contract rent under the expired Section 8 contract.
The motion is based on this notice and the memorandum of points and
authorities attached hereto, the separate statement, declarations, the pleadings
and other papers on file herein, and such evidence, both oral and documentary,
as may be presented at the hearing on the motion.
DATED: June 11, 2001 MARTITA L. OCON
JULIE M. BALOVICH
BET TZEDEK LEGAL SERVICES
By:
MARTITA L. OCON, ESQ.
Attorneys for Defendants
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION.
Defendant Ralph Frenette has resided at the premises since October 1, 1996.
Defendant’s tenancy was a federally-subsidized Section 8 tenancy. Under the
Section 8 program, plaintiff entered into a contract with the Housing Authority
of the City of Los Angeles (hereinafter "HACLA") for defendant to
lease the premises at a total monthly contract rent of $590.00. Under the
Section 8 contract, defendant was obligated to pay only $179.00 of the contract
rent. The Housing Authority paid the balance in the form of a "housing
assistance payment" to plaintiff.
On November 21, 2000, HACLA sent plaintiff a notice advising him that the
Section 8 contract governing defendant’s tenancy would expire on March 30,
2001. The notice informed him that if he failed to renew the contract, the
housing assistance payments would stop upon the expiration of the contract. The
notice instructed plaintiff how to renew his contract with HACLA.
Plaintiff failed to renew the contract, and on March 30, 2001, the contract
expired. Prior to the expiration of the contract, plaintiff did not give any
notice to defendant that plaintiff was not going to renew the contract.
On April 11, 2001, plaintiff served defendant a 3-day notice to pay or quit,
demanding $590.00 –- i.e., the entire portion of the monthly "contract
rent" under the expired Section 8 contract.
/ / /
II. SUMMARY JUDGMENT MAY BE GRANTED WHEN THE MOVING PAPERS SHOW THERE IS
NO TRIABLE ISSUE AS TO ANY MATERIAL FACT.
Any party may move for summary judgment if it is contended that the action
has no merit. Code Civ. Proc. §437c(a). The motion shall be granted if all the
papers submitted show that there is no triable issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. Code Civ.
Proc. § 437c(c). Motions for summary judgment are expressly permitted in
unlawful detainer actions. Code Civ. Proc. § 1170.7.
III. THE 3-DAY NOTICE OVERSTATES THE AMOUNT OF RENT DUE.
A. Plaintiff cannot demand more than defendant’s share of the Section 8
contract rent because plaintiff failed to serve defendant with 90 days’
written notice that plaintiff was not renewing the Section 8 contract.
When a landlord fails to renew a Section 8 contract, the landlord must give
the tenant 90 days’ advance notice in writing. Civil Code § 1954.535. For 90
days following receipt of the notice, the tenant’s share of the rent is frozen
at the level provided for in the Section 8 contract. Id.
In this action, it is undisputed that plaintiff failed to provide defendant
with 90 days’ written notice that plaintiff was not going to renew defendant’s
Section 8 contract. Consequently, plaintiff is barred from demanding the full
amount of the Section 8 contract rent from defendant, and the 3-day notice
overstates the amount due.
The legislative history of Section 1954.535 explains that the purpose of the
90-day notice rule is to give the tenant ample warning that the landlord is
withdrawing from the Section 8 program, so that the tenant will have an
opportunity to find replacement income to cover the full contract rent, or to
find replacement housing if the tenant cannot afford the full contract rent. The
90-day notice rule does not impose an onerous burden on the landlord:
The only burden is to advise the affected tenants of the owner’s decision
[not to renew] sixty days earlier, thereby giving the affected tenants more time
to prepare. This is fair, assert the proponents, given the tight market for
low-income housing and the unique relationship between the Section 8 tenant and
his or her landlord.
Hearing on Senate Bill No. 1098, before the Senate Floor Committee (Sept. 8,
1999) p. 7.
Plaintiff had more than 120 days’ notice from HACLA defendant’s Section 8
contract was expiring. HACLA’s notice, dated November 21, 2001, instructed
plaintiff how to renew the contract, and advised plaintiff of the consequences
of the failure to renew, i.e., that the housing assistance payments would cease
when the contract expired on March 30, 2001. See HACLA Letter, Ex. F-1 to
Ocon declaration. The notice further advised plaintiff that he should decide
within 30 days whether he was going to renew the contract. See HACLA
Letter, Ex. F-2 to Ocon declaration. Plaintiff therefore should have known at
least 90 days prior to the expiration of the contract whether he intended to
renew it.
Instead of giving defendant a proper 90-day notice that plaintiff was not
going to renew the Section 8 contract, plaintiff waited until April – after
the contract expired –- to inform defendant that defendant was now fully
responsible for the entire contract rent. As a result, defendant was blindsided
by plaintiff’s 3-day notice, which demanded an amount of rent that defendant
could not afford to pay, having insufficient time to find additional money or to
relocate.
Until plaintiff serves defendant with 90 days’ written notice advising
defendant of plaintiff’s failure to renew the Section 8 contract, defendant is
not obligated to pay more than $179.00 -- his share of the rent under the
expired Section 8 contract. Therefore, the 3-day notice demanding $590.00 is
fatally defective because it overstates the amount of rent due. See Ernst
Enterprises, Inc. v. Sun Valley Gasoline, Inc. (1983) 139 Cal. App. 3d 355,
358, 188 Cal. Rptr. 641, 644 ("A notice to pay rent or quit which
overstates the rent due is ineffective and will not support an action for
unlawful detainer.").
/ / /
B. Plaintiff cannot demand a rental increase of over ten percent because he
failed to serve defendant with 60 days’ written notice.
Under the expired Section 8 contract, defendant’s share of the rent was
only $179.00 per month. The balance of the monthly contract rent was paid by the
Housing Authority in the form of a housing assistance payment. Under California
law, the housing assistance payment does not constitute rent. Savett v. Davis
(1994) 29 Cal. 4th Supp. 13, 17, 34 Cal. Rptr. 2d 550. Accordingly,
when the Section 8 contract expired on March 30, 2001, any increase in the
defendant’s share of the rent because of the abatement of the housing
assistance payment constituted a change in terms of the tenancy, which must be
preceded by written notice under Civil Code section 827.
A recent change in California law requires an owner to give 60 days’
written notice before increasing the rent by more than ten percent. Civil Code
§ 827(b)(3) (effective January 1, 2001). This extended notice period allows the
tenant additional time to come up with replacement income or make other
arrangements, such as finding a roommate or relocating. See Section 1,
Sen. Bill No. 1745 approved by Governor, Sept. 24, 2000, Legis. Counsel’s
Digest, ch. 680, p. 93 (attached hereto).
In this case, the 3-day notice demands a rental amount from defendant that is
more than 300 percent of his share of the rent under the expired Section 8
contract. Prior to April 2001, plaintiff never gave defendant any notice that
defendant’s rent would be increased to the full contract rent of $590.00.
Until plaintiff serves defendant with 60 days’ written notice, plaintiff is
barred from demanding a rental increase of more than ten percent. The 3-day
notice is therefore fatally defective because it improperly overstates the
amount of rent due. See Ernst Enterprises, Inc. v. Sun Valley
Gasoline, Inc. (1983) 139 Cal. App. 3d 355, 358, 188 Cal. Rptr. 641, 644.
IV. CONCLUSION.
For the foregoing reasons, defendant respectfully requests that his motion
for summary judgment be granted.
DATED: June 11, 2001 MARTITA L. OCON, ESQ.
JULIE M. BALOVICH, ESQ.
BET TZEDEK LEGAL SERVICES
By: MARTITA L. OCON, ESQ.
Attorneys for Defendants
DECLARATION OF MARTITA L. OCON
I, Martita L. Ocon, declare:
1. The facts set forth in this declaration are personally known to me, and I
have firsthand knowledge of the same. If called as a witness, I could and would
testify competently thereto under oath.
2. I am an attorney duly licensed to practice in the State of California. I
am employed by Bet Tzedek Legal Services, attorney of record for Defendant Ralph
Frenette.
3. On April 24, 2001, defendant’s first sets of special interrogatories and
production requests were served on plaintiff’s counsel, and true and correct
copies are attached as Exhibits A and B to this declaration, respectively.
4. Attached to this declaration as exhibits C and D are true and correct
copies of plaintiff’s responses to defendant’s special interrogatories and
production requests, respectively.
5. In response to defendant’s special interrogatory number 3, in which
defendant requested that plaintiff identify any termination notices served on
defendant pursuant to Civil Code section 1954.535, plaintiff produced a letter
from plaintiff to defendant, a true and correct copy of which is attached hereto
as Exhibit E. Although the letter produced is unsigned and undated, the letter
was evidently written in April 2001, as it demands the "balance now due on
your April rent."
6. Plaintiff did not produce any 90-day notice in response to special
interrogatory number 3 or in response to defendant’s production requests.
7. Plaintiff produced the same April 2001 letter from plaintiff to defendant
in response to defendant’s special interrogatory number 7, requesting that
plaintiff identify any rent increase notice given to defendant under Civil Code
section 827.
8. Plaintiff did not produce any 60-day notice of rent increase in response
to special interrogatory number 7 or in response to defendant’s production
requests.
9. Among the documents produced by plaintiff in response to defendant’s
production requests was a letter from the Housing Authority of the City of Los
Angeles (HACLA) dated November 21, 2000, a true and correct copy of which is
attached hereto as Exhibit F. The letter notified the plaintiff that defendant’s
Section 8 contract expired on March 30, 2001.
10. Attached hereto as Exhibit G is a certified copy of a notice from HACLA
dated April 11, 2000, adjusting the total contract rent to $590.00 and defendant’s
share to $179.00. I obtained this document from HACLA on May 3, 2001.
I declare under penalty of perjury under all of the laws of the State of
California that the foregoing is true and correct.
Executed this ___ day of ________, 2001, at Los Angeles, California
_____________________________
Martita L. Ocon, Esq.
DECLARATION OF RALPH FRENETTE
I, Ralph Frenette, declare:
1. The facts set forth in this declaration are personally known to me, and I
have firsthand knowledge of the same. If called as a witness, I could and would
testify competently thereto under oath.
2. I am the defendant in this unlawful detainer action.
3. Until March 30, 2001, my tenancy was governed by a Section 8 contract.
Under that contract, the total monthly contract rent for my apartment was
$590.00. My portion of the rent was $179.00, and the Housing Authority of the
City of Los Angeles paid a $411.00 housing assistance payment to my landlord.
The contract expired on March 30, 2001.
I declare under penalty of perjury under all of the laws of the State of
California that the foregoing is true and correct.
Executed this ___ day of ________, 2001, at Los Angeles, California.
_____________________________
Ralph Frenette
