Hendleman v. Los Altos Apartments ( 2013 )


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  • Filed 7/22/13; pub. order 8/20/13 (see end of opn.)
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    DAVID HENDLEMAN et al.,                                B235404
    Plaintiffs and Appellants,                    (Los Angeles County
    Super. Ct. No. BC406059)
    v.
    LOS ALTOS APARTMENTS, L.P., et al.,
    Defendants and Respondents.
    APPEAL from an order of the Superior Court of Los Angeles County,
    Michael Johnson, Judge. Affirmed.
    Law Office of Sheri L. Kelly, Sheri L. Kelly; Consumer Law Offices and
    Daniel T. LeBel for Plaintiffs and Appellants.
    Willis Depasquale, James M. Hansen, Larry N. Willis and Thomas M.
    Rutherford, Jr., for Defendants and Respondents.
    _________________________
    INTRODUCTION
    Named plaintiffs David Hendleman and Anne Aaronson appeal from the order of
    the trial court denying their motion for certification of a class of tenants at the Los Altos
    Apartments in the context of their lawsuit against the landlord. Plaintiffs brought this
    action alleging the landlord failed to repair and maintain the property in a safe and
    habitable condition over a period of 10 months, unlawfully demanded increased rents,
    and retaliated against the tenants for exercising their rights. The trial court denied
    plaintiffs‟ motion for class certification for lack of ascertainability, community of
    interest, and superiority. In their appeal, plaintiffs contend that the class is ascertainable
    and there are common issues of law and fact, with the result they should be able to
    proceed as a class against defendants Los Altos Apartments, L.P., Charles and Cynthia
    Eberly, Inc., Allen Gross, Charles Eberly and David Strahm who are owners, managers,
    or representatives of the apartment building (together the landlord or defendants). To the
    extent problems of ascertainability or commonality exist, they argue, the class can be
    modified. We conclude the trial court correctly ruled that individual issues of law and
    fact predominate all five causes of action. Accordingly, we affirm the order.
    FACTUAL AND PROCEDURAL BACKGROUND
    1. The ordinances at issue
    Plaintiffs‟ lawsuit is premised on two City of Los Angeles ordinances, the Rent
    Escrow Account Program (REAP) (L.A. Mun. Code, § 162.00 et seq.) and the
    Los Angeles Rent Stabilization Ordinance (RSO) (L.A. Mun. Code, § 151.00 et seq.).
    The Los Angeles City Housing Code is designed to address the problem of “substandard
    and unsanitary residential buildings” in the city that render the dwellings “unfit or unsafe
    for human occupancy” and are detrimental to the health, safety, and welfare of their
    occupants and threaten the physical, social, and economic stability of residential
    buildings. (L.A. Mun. Code, § 161.102.) The goal of REAP is to provide a “just,
    equitable and practical method” for enforcement of the purposes of the Housing Code
    and “to encourage compliance by landlords with respect to the maintenance and repair of
    residential buildings, structures, [and] premises.” (L.A. Mun. Code, § 162.01(A).) The
    2
    RSO addresses a declared shortage of decent, safe and sanitary housing at affordable
    levels that has a detrimental effect on substantial numbers of renters in the city.
    (L.A. Mun. Code, § 151.01.) The RSO regulates rents to safeguard tenants from
    excessive rent increases while providing landlords with reasonable returns from their
    rental units. (Ibid.)
    Under REAP, the Los Angeles Housing Department (LAHD), among other city
    agencies, periodically inspects rental buildings and orders landlords to correct violations
    of the city‟s Housing Code and California‟s Health and Safety Code (L.A. Mun. Code,
    § 161.401, 161.201, 161.602.1, 161.701.2 & 161.702.) If the property is the subject of
    one or more of such orders, the period for compliance has expired, and the orders concern
    violations that affect the health or safety of the occupants, or if the property is subject to
    the RSO and results in the deprivation of housing services or habitability, the LAHD
    places the property into REAP. (L.A. Mun. Code, §§ 162.03-162.05.) Among the effects
    of being placed into REAP is a mandatory reduction in rents, up to 50 percent, according
    to a schedule that takes into account the nature of the violation, the severity of the
    conditions, and the history of past untenantable conditions. (L.A. Mun. Code, § 162.05.)
    When it accepts a property into REAP, the LAHD serves notice on all affected
    tenants (L.A. Mun. Code, § 162.04(E)) and establishes a trust fund account into which
    tenants may deposit rent payments. (L.A. Mun. Code, § 162.07(a)(1).) Once the
    landlord complies with the notices and corrects the violations, the LAHD terminates
    REAP and returns the funds in the escrow account minus fees to the landlord.
    (L.A. Mun. Code, § 162.08.)
    The RSO regulates rents. (L.A. Mun. Code, § 151.01.) A rent increase is defined
    as an increase in rent or a reduction in housing services without a concomitant reduction
    in rent. (L.A. Mun. Code, § 151.02.) The RSO controls the rate at which a landlord may
    increase rent for property that is subject to the RSO.
    3
    2. The Los Altos Apartments and the LAHD
    The Los Altos Apartments, located at 4121 Wilshire Boulevard, Los Angeles, is a
    68-unit, five story apartment building constructed in the 1920s. Twenty eight units, or 40
    percent of the apartments, are affordable units intended for low-income tenants.
    The LAHD inspected the Los Altos Apartments three times in May, July, and
    August 2006. It placed the property into REAP in February 2007 (Case No. 79550) and
    reduced the rents by the maximum of 50 percent for “almost every single unit.” The
    REAP order became final in March 2007. (L.A. Mun. Code, § 162.02(A).)
    The Los Altos Apartments sued the City of Los Angeles (the City) for placing it
    into REAP. Among other things, the landlord alleged that it had cooperated with
    LAHD‟s inspectors and timely repaired the violations. The trial court dismissed the
    action because, inter alia, the Los Altos Apartments failed to exhaust its administrative
    remedies. Another division of this District Court of Appeal affirmed the lawsuit‟s
    dismissal on the basis that the Los Altos Apartments failed to present a timely claim.
    (Los Altos Apartments, L.P. v. City of Los Angeles (July 7, 2011, B222174) [nonpub.
    opn.].)1
    3. The instant complaint brought by the named plaintiffs
    The named plaintiffs filed the fourth amended complaint on behalf of similarly
    situated tenants who resided at, and paid rent to, the Los Altos Apartments between
    January 22, 2005 and September 2010. The complaint alleges that the LAHD issued the
    landlord repeated notices and placed the property into REAP for the following: fire safety
    violations, such as the failure to maintain required self-closing, self-latching separation
    fire doors in the common areas, obstructed exits and stairwells blocked emergency
    egress, and problems with the exterior weatherproofing, all of which defects are alleged
    to have an impact on the common areas and constitute violations of the Los Angeles
    Municipal Code and California‟s Health and Safety Code. The complaint alleges that
    1
    Unpublished opinions of the Court of Appeal may be cited under the doctrines of
    law of the case and collateral estoppel. (Cal. Rules of Court, rule 8.1115(b).)
    4
    during the class period, the landlord reduced the following housing services: (1) fire and
    emergency safety and (2) weatherproofing, which service reductions caused the building
    to be accepted into REAP; along with (3) trash pickup causing overflowing trash bins;
    (4) elevator function; and (5) security, all of which deficiencies affect tenants in a similar
    fashion. The complaint alleges further that in violation of REAP, the landlord demanded
    the full unadjusted rent, and sometimes more, by (1) issuing multiple notices to plaintiffs
    and the putative class falsely stating the tenants were obligated to pay the full amount
    directly to the landlord, (2) issuing three-day notices to pay rent or quit, and (3) issuing
    notices falsely stating the tenants owed past due rent in the amount of hundreds and
    sometimes thousands of dollars.
    Plaintiffs allege against the landlord: (1) violation the RSO (L.A. Mun. Code,
    § 151.04) by charging the full rent despite reducing housing services; (2) retaliation
    against the class in violation of REAP (L.A. Mun. Code, § 162.00 et seq.) by demanding
    every tenant pay rent that exceeded the reduced amounts, issuing three-day notices to pay
    rent or quit, and demanding tenants pay past-due rent directly to the landlord; (3-4)
    breach of the implied warranty of habitability and nuisance by reducing services and
    causing the property to be accepted into REAP; and (5) abuse of process. In addition to
    damages, plaintiff seek an injunction to abate the nuisance and the landlord‟s harassment.
    4. Plaintiffs’ class certification motion
    a. class and subclass definition
    The two named plaintiffs moved for certification of a class defined as follows:
    “All tenants of the Los Altos Apartments, located at 4121 Wilshire Blvd., Los Angeles,
    CA 90010, during any part of the time period of January 22, 2005 to the present.”
    Plaintiffs‟ proposed subclass would consist of “Any class member who received
    any of the following notices: (1) a three-day notice to pay rent or quit on or about
    April 12, 2007; (2) a notice dated April 16, 2007 stating that the tenant was obligated to
    „pay your full rent directly to the landlord;‟ or (3) a notice in late June, 2007 stating that
    the tenant owed a past due amount, without an explanation as to what the overdue amount
    referred.”
    5
    The certification motion defined the term “ „tenant‟ ” in the class and subclass,
    based on the RSO (L.A. Mun. Code, § 151.02). The trial court proposed a revision to
    plaintiffs‟ definition to include, rental payments accepted by the landlord. It reasoned
    that case law recognizes as tenants, not just those who were parties to leases or subleases,
    but also those who were subtenants whose rental payments were accepted by a tenant.
    The final proposed iteration read: “The term „tenant‟ in the Class and Subclass means any
    tenant, lessee, or occupant under a written lease or rental agreement, or any tenant,
    subtenant, sublessee or other person entitled to use or occupy a rental unit and who
    submitted one or more rental payments that were accepted by the Landlord.”
    Plaintiffs emphasized that the class was ascertainable. The landlord provided the
    names, dates of occupancy, and last known addresses of 132 tenants who signed leases.
    Thus, identifying the tenants who overpaid rent when the property was in REAP could be
    accomplished by comparing the landlord‟s records with the City‟s orders, plaintiffs
    argued. In fact, defendants had already identified many of the class and subclass
    members, plaintiffs observed.
    b. Common questions of law and fact
    Plaintiffs averred that the class and subclass shared a community of interest
    because, among other things, common questions of law and fact predominated. Plaintiffs
    asserted their complaint‟s five causes of action arose from a single set of four common
    questions: “(1) whether severe Code violations, as cited by the LAHD, affecting the
    whole building existed at Los Altos from May 2006 through March 2007, and if so,
    whether Plaintiffs are entitled to recover partial refunds of rent under Plaintiffs‟ legal
    theories; (2) whether, under the circumstances of the Property being placed in REAP, the
    Landlord wrongfully demanded, collected or retained more than 50% of rent from the
    tenants; (3) whether the uniform three-day notices to pay rent or quit and other uniform
    notices demanding more than the reduced amount of rent from the tenants when the
    Property was in REAP constituted retaliation; and (4) whether the Landlord has failed to
    adequately maintain the elevator, security, garbage, and other housing services at the
    Los Altos during the class period.”
    6
    Many of the defects involved code violations or habitability issues in individual
    apartments. On appeal, plaintiffs declare they are not challenging the trial court‟s order
    denying certification of a class for defects in individual units. Rather, plaintiffs seek
    review of the trial court‟s denial of certification of a class affected by defects in the
    common areas only.
    As common evidence of substandard conditions in the common areas, plaintiffs
    pointed to testimony from the LAHD‟s housing inspectors, the LAHD inspection reports
    and work logs reflecting the 2006-2007 violations, the landlord‟s maintenance records
    and past due trash bills, testimony from percipient witnesses, and photos. Attached to the
    certification motion was a list the landlord gave LAHD of over 60 tenants who lived at
    Los Altos Apartments when the building was referred to REAP, along with the tenants‟
    then-current, non-REAP rents. Also included with the motion were the landlord‟s notice
    to “All Tenants” demanding full rent while the building was in REAP, which the building
    manager testified in deposition was distributed to every tenant and posted in the common
    areas.
    5. Opposition to the class certification motion
    Defendants‟ opposition first raised questions about plaintiffs‟ ability to
    demonstrate an ascertainable class. Defendants argued that, as defined by plaintiffs,
    membership in the class “would require a person by person inquiry and evaluation of
    individual facts.” For example, Unit 307 was leased to one person, whereas named
    plaintiff Aaronson occupied it, necessitating individual inquiry of the facts giving rise to
    the occupancy to determine class membership. Referring to the named plaintiffs,
    defendants asserted that Aaronson lacked standing and was an inadequate class
    representative as she never signed a lease agreement and she paid her rent directly to the
    lessee of Unit 307 until August 2007, after the property was removed from REAP. Also,
    Aaronson testified that while the property was in REAP, she never paid more than 50
    percent rent. Hendleman was an inadequate representative because the trial court had
    already ruled Hendleman‟s claims in the second cause of action were barred by the
    statute of limitations.
    7
    Defendants also argued that individualized issues predominated defeating
    commonality. Evidence of retaliation and harassment raised individual issues about the
    circumstances of the communications between the landlord and each tenant and whether
    a tenant felt harassed and their individual reactions to rent demands, defendants averred.
    As for defects of the property, individual evidentiary issues existed about whether any of
    the alleged conditions interfered with each tenant‟s use of the services, how long the
    conditions affected each tenant, the type of harm suffered, the seriousness of the harm,
    and individual issues of causation. Defendants also argued that the LAHD cited many
    Code violations that were caused by tenants.2
    Finally, defendants‟ opposition to the certification motion urged that class action
    is not a superior method to other litigation approaches.
    6. The trial court’s ruling
    The trial court requested supplemental briefing on the class definition explained
    above, and about whether, as the result of the outcome of defendants‟ lawsuit against the
    City of Los Angeles, defendants are collaterally estopped from arguing that alleged
    habitability problems were caused by class members. After further briefing and
    argument, the trial court denied plaintiffs‟ class certification motion. The court ruled the
    class was not ascertainable, individual questions of fact and law predominated, collateral
    estoppel did not bar defendants from raising the tenant misconduct defense, and class
    action was not a superior method of litigation. Plaintiffs filed their timely appeal.
    DISCUSSION
    1. Principles of class certification
    “Code of Civil Procedure section 382 authorizes class actions „when the question
    is one of a common or general interest, of many persons, or when the parties are
    numerous, and it is impracticable to bring them all before the court . . . .‟ The party
    2
    To refute the named plaintiffs‟ habitability claims, defendants submitted
    declarations executed in 2010 and 2011 from 40 tenants averring that, in the particular
    declarant‟s opinion, there was no problem with the enumerated defects. The trial court
    did not mention these declarations in its ruling on the certification motion.
    8
    seeking certification has the burden to establish the existence of both an ascertainable
    class and a well-defined community of interest among class members [citations]” (Sav-
    On Drug Stores, Inc. v. Superior Court (2004) 
    34 Cal. 4th 319
    , 326), and “substantial
    benefits from certification that render proceeding as a class superior to the alternatives.”
    (Brinker Restaurant Corp. v. Superior Court (2012) 
    53 Cal. 4th 1004
    , 1021 (Brinker).)
    As “ „trial courts are ideally situated to evaluate the efficiencies and practicalities
    of permitting group action, they are afforded great discretion in granting or denying
    certification.‟ ” (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at
    p. 326.) Accordingly, “in the absence of other error, a trial court ruling supported by
    substantial evidence generally will not be disturbed „unless (1) improper criteria were
    used [citation]; or (2) erroneous legal assumptions were made [citation]‟ [citation].
    Under this standard, an order based upon improper criteria or incorrect assumptions calls
    for reversal „ “even though there may be substantial evidence to support the court‟s
    order.” ‟ [Citations.] Accordingly, we must examine the trial court‟s reasons for denying
    class certification” (Linder v. Thrifty Oil Co. (2000) 
    23 Cal. 4th 429
    , 435–436) and
    “ignore any unexpressed grounds that might support denial.” (Kaldenbach v. Mutual of
    Omaha Life Ins. Co. (2009) 
    178 Cal. App. 4th 830
    , 844.) “We may not reverse, however,
    simply because some of the court‟s reasoning was faulty, so long as any of the stated
    reasons are sufficient to justify the order. [Citation.]” (Ibid.)
    2. Commonality of law and fact
    The “ „ “community of interest requirement embodies three factors:
    (1) predominant common questions of law or fact; (2) class representatives with claims or
    defenses typical of the class; and (3) class representatives who can adequately represent
    the class.” ‟ [Citations.]” (Brinker, supra, 53 Cal.4th at p. 1021.) The “[p]laintiffs [have
    the] burden to establish the requisite community of interest and that „. . . questions of law
    or fact common to the class predominate over the questions affecting the individual
    members.‟ [Citation.]” (Lockheed Martin Corp. v. Superior Court (2003) 
    29 Cal. 4th 1096
    , 1104.) “ „The ultimate question in every case of this type is whether . . . the issues
    which may be jointly tried, when compared with those requiring separate adjudication,
    9
    are so numerous or substantial that the maintenance of a class action would be
    advantageous to the judicial process and to the litigants.‟ [Citations.]” (Id. at pp. 1104-
    1105.) Thus, “[p]resented with a class certification motion, a trial court must examine
    the plaintiff‟s theory of recovery, assess the nature of the legal and factual disputes likely
    to be presented, and decide whether individual or common issues predominate.”
    (Brinker, supra, at p. 1025.) “Proof of most of the important issues as to the named
    plaintiffs” must “supply the proof as to all” members of the class. (Vasquez v. Superior
    Court (1971) 
    4 Cal. 3d 800
    , 815.)
    Although on review we assume all causes of action have merit, “ „issues affecting
    the merits of a case may be enmeshed with class action requirements . . . .‟ [Citations.]
    When evidence or legal issues germane to the certification question bear as well on
    aspects of the merits, a court may properly evaluate them. [Citations.] The rule is that a
    court may „consider[ ] how various claims and defenses relate and may affect the course
    of the litigation‟ even though such „considerations . . . may overlap the case‟s merits.‟
    [Citations.]” (Brinker, supra, 53 Cal.4th at pp. 1023-1024.) More specifically, “whether
    an element may be established collectively or only individually, plaintiff by plaintiff, can
    turn on the precise nature of the element and require resolution of disputed legal or
    factual issues affecting the merits. For example, whether reliance or a breach of duty can
    be demonstrated collectively or poses insuperable problems of individualized proof may
    be determinable only after closer inspection of the nature of the reliance required or duty
    owed and, in some instances, resolution of legal or factual disputes going directly to the
    merits. [Citations.]” (Id. at p. 1024.)
    “Predominance is a factual question; accordingly, the trial court‟s finding that
    common issues predominate generally is reviewed for substantial evidence. [Citation.]
    We must „[p]resum[e] in favor of the certification order . . . the existence of every fact the
    trial court could reasonably deduce from the record . . . .‟ [Citation.]” (Brinker, supra,
    53 Cal.4th at p. 1022.)
    With these rules in mind, we turn to the trial court‟s ruling denying class
    certification.
    10
    a. The third cause of action: The trial court did not err in ruling the claim for
    breach of the implied warranty of habitability is not amenable to common proof.
    A warranty of habitability is implied in residential leases in California. (Green v.
    Superior Court (1974) 
    10 Cal. 3d 616
    , 629.) “In most cases substantial compliance with
    those applicable building and housing code standards which materially affect health and
    safety will suffice to meet the landlord‟s obligations under the common law implied
    warranty of habitability.” (Id. at p. 637, italics added.)
    However, the mere “existence of a prohibited (uninhabitable) condition or other
    noncompliance with applicable code standards does not necessarily constitute a breach of
    the warranty of habitability.” (Friedman et al., Cal. Practice Guide: Landlord-Tenant
    (The Rutter Group 2012) § 3:39, p. 3-13, citing Green v. Superior Court, supra,
    10 Cal.3d at pp. 637-638.) “Whether the defect or code noncompliance is „substantial‟
    (and thus a cognizable breach) or „de minimis‟ (no actionable breach) is determined on a
    case-by-case basis.” (Friedman et al., supra, § 3:40, p. 3-13.) “In considering the
    materiality of an alleged breach, both the seriousness of the claimed defect and the length
    of time for which it persists are relevant factors. Minor housing code violations standing
    alone which do not affect habitability must be considered de minimis and will not entitle
    the tenant to reduction in rent; and likewise, the violation must be relevant and affect
    the . . . common areas which [the tenant] uses.” (Hinson v. Delis (1972) 
    26 Cal. App. 3d 62
    , 70, disapproved on other grounds by Knight v. Hallsthammar (1981) 
    29 Cal. 3d 46
    ,
    55, fn. 7.) Stated otherwise, whether a particular defect or violation of a housing code
    constitutes a breach of the implied warranty of habitability depends on the severity and
    duration of the defect or violation. Breach is a rebuttable presumption affecting the
    burden of producing evidence. (Friedman et al., supra, §§ 3:46 to 3:47, pp. 3-14 to 3-
    15.)
    Plaintiffs do not quarrel with the proposition that whether a defect or code
    violation is sufficiently substantial to constitute an actionable breach is determined on a
    case by case basis. They argue instead that a cause of action for breach of the warranty
    of habitability can be brought with evidence common to all tenants in a building.
    11
    Plaintiffs claim their common evidence for their liability-only class includes the LAHD
    inspection reports, work logs, past due trash bills, and plaintiffs‟ testimony and
    photographs. The LAHD inspector declared that the fire-safety and weatherproofing
    violations “affect the entire building.” Plaintiffs note that this evidence is how any
    individual tenant would prove the landlord breached the warranty of habitability as to
    them. (Friedman et al., Cal. Practice Guide: Landlord-Tenant, supra, § 3:63 to 3:65,
    pp. 3-19 to 3-20.)3 It is important here to make the distinction between code violations
    and service reductions. The common-area code violations cited by the LAHD concerned
    weatherproofing and fire exit defects that triggered REAP, but not the alleged service
    reductions, i.e., trash, elevator, and security. In our view, the code violations and service
    reduction defects raise individualized problems of proof that go to the heart of the merits
    and defeat commonality.
    Community of interest “means „each member must not be required to individually
    litigate numerous and substantial questions to determine his [or her] right to recover
    following the class judgment.” (Washington Mutual Bank v. Superior Court (2001)
    
    24 Cal. 4th 906
    , 913-914, italics added.) Although plaintiffs‟ proffered evidence raises a
    rebuttable presumption that there are code violations and service reductions having an
    impact on the common areas of the building, plaintiffs must nonetheless demonstrate that
    each defect is sufficiently substantial to be actionable. (Friedman et al., Cal. Practice
    3
    The parties argue at length about defendants‟ affirmative defense that tenant
    misconduct caused the habitability problems. Among the reasons for defendants‟
    opposition to class certification was the necessity of individualized evidence of particular
    tenants‟ misconduct. Plaintiffs argued that certification cannot be defeated by a defense.
    To the contrary, “[a] liability-only class certification may be denied . . . where there are
    defenses that require individualized inquiry into each class member‟s claim.” (Weil &
    Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012)
    § 14:103.6, p. 14-74, citing In re Ford Motor Co. Ignition Switch Products (D.N.J. 1997)
    
    174 F.R.D. 332
    , 347.) Plaintiffs also argued that defendants were collaterally estopped
    from raising the question of tenant misconduct because they failed to raise the defense
    when they could have in an appeal before the LAHD. Because we agree with the trial
    court that class certification is defeated by the predominance of individual issues of
    liability, we need not address the collateral estoppel question.
    12
    Guide: Landlord-Tenant, supra, § 3:40, p. 3-13.) While the trial court recognized that the
    fire safety defects affected everyone in the building and three LAHD inspectors declared
    that the cited violations affected every apartment in the building, the evidence supports
    the trial court‟s finding that the alleged code violations and service reductions do not
    affect all of the tenants in the same manner or to the same degree. (Vasquez v. Superior
    Court, supra, 4 Cal.3d at p. 815.) As defendants demonstrated, some of the tenants have
    not noticed and are not affected by some of the alleged code violations and service
    reductions. The differences among the two named plaintiffs alone about the effect of the
    alleged code violations and reductions in service reveal the need for individual proof of
    impact on each plaintiff. For example, Hendleman and Aaronson report different
    problems with the trash bins and by the condition of the elevator. Some tenants do not
    use the elevator and so they would not be harmed by its intermittent failures. Security
    was not promised under the lease and the manner and extent to which a tenant is
    disturbed by defects in security differs. Weatherproofing problems may affect one tenant
    and “never be seen by those who live in another area of the building.” Whether and how
    each tenant is affected by the alleged code violations and service reductions, and the
    extent and type of harm suffered, so as to establish that these conditions are “substantial”
    and thus actionable, is not subject to common proof.
    Plaintiffs insist that they need not demonstrate the effect that the code violations
    have on each tenant because, citing Knight v. Hallsthammar, supra, 29 Cal.3d at page 54,
    they argue tenants need not have been aware that a code violation existed for a landlord
    to have breached the implied warranty of habitability. Knight stated “the fact that a
    tenant was or was not aware of specific defects is not determinative of the duty of a
    landlord to maintain premises which are habitable.” (Ibid., italics added.) But, the
    implied warranty of habitability “does not support an action for strict liability.”
    (Peterson v. Superior Court (1995) 
    10 Cal. 4th 1185
    , 1191, 1206.) The question here is
    not whether plaintiffs can by common proof demonstrate a breach of the duty, but
    whether they can demonstrate a breach that is sufficiently substantial to be actionable.
    (Green v. Superior Court, supra, 10 Cal.3d at pp. 637-638.) Certification of the class for
    13
    this cause of action would necessarily include tenants who are unaware of and do not
    experience a service reduction, and would thus make the landlord strictly liable for the
    mere existence of a defect. This is not simply a question of calculating damages, as
    plaintiffs insist. The individual issues pervading this cause of action go to the question of
    each tenant‟s entitlement to recover. “[A] class action cannot be maintained where each
    member‟s right to recover depends on facts peculiar to his case.” (City of San Jose v.
    Superior Court (1974) 
    12 Cal. 3d 447
    , 459.) Here, evidence of numerous, substantial, and
    individualized facts would be necessary for each tenant to establish his or her individual
    right to recover thus rendering class litigation inappropriate. (Wilens v. TD Waterhouse
    Group, Inc. (2003) 
    120 Cal. App. 4th 746
    , 756; see also Basurco v. 2st Century Ins. Co.
    (2003) 
    108 Cal. App. 4th 110
    , 119 [no certification where “the existence of [earthquake]
    damage, the cause of damage, and the extent of damage would have to be determined on
    a case-by-case basis”].) Put otherwise, for the same reason that, as plaintiffs concede,
    defects in an individual apartment are not amenable to common proof, defects that
    substantially impinge on only some tenants in the building require individualized
    evidence, particularly where there is demonstrated disagreement between the named
    plaintiffs.4
    In sum, the record contains substantial evidence to support the trial court‟s
    findings that individual issues predominate and the court employed proper criteria and
    legal assumptions in ruling that plaintiffs have not demonstrated the requisite
    commonality with respect to the third cause of action.
    4
    On appeal, plaintiffs assert they are only seeking damages in the third cause of
    action under a contract theory, i.e., the difference between the rent paid and the rent that
    would have been reasonable (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real
    Property, § 627, p. 734), under which individualized “damages for discomfort and
    annoyance are not recoverable.” (Ibid.) However, as we conclude individual issues of
    liability predominate, we need not reach the question of damages.
    14
    b. The first cause of action: the trial court did not abuse its discretion in denying
    certification of the claim of illegal rent increases under the RSO for lack of commonality.
    In the first cause of action under the RSO, plaintiffs allege that the landlord
    reduced services affecting the entire property without correspondingly reducing rent,
    which conduct constitutes a rent increase under the RSO (L.A. Mun. Code, § 151.02).
    They also allege that between February 2007 and June 2007, the property was in REAP
    with a corresponding 50 percent reduction in rent. Nonetheless, plaintiffs allege,
    defendants demanded, accepted, or retained more than the “Maximum Adjusted Rent
    from all of the tenants” in violation of Los Angeles Municipal Code section 151.04. That
    section reads, “It shall be unlawful for any landlord to demand, accept or retain more than
    the maximum adjusted rent permitted pursuant to this chapter or regulation or orders
    adopted pursuant to this chapter.” (L.A. Mun. Code, § 151.04(A).) The RSO defines
    “Maximum Adjusted Rent” as maximum rent “less any rent reductions . . . imposed
    pursuant to Section 162.00 et seq. [REAP].” (L.A. Mun. Code, § 151.02.) Plaintiffs rely
    on this section to argue the landlord violated the RSO for by demanding, accepting, or
    retaining, more than the maximum adjusted rent as determined by the LAHD, which by
    definition involved reductions imposed pursuant to REAP.
    The trial court found that by alleging reduced housing services, plaintiffs had
    injected the same individualized habitability questions raised in the third cause of action.
    We agree. The RSO defines housing services as “Services connected with the use or
    occupancy of a rental unit including, but not limited to, utilities (including light, heat,
    water and telephone) . . . the provision of elevator service, laundry facilities and
    privileges, common recreational facilities, janitor service, resident manager, refuse
    removal, furnishings, food service, parking and any other benefits privileges or
    facilities.” (L.A. Mun. Code, § 151.02.) As noted, defendants presented evidence that
    many tenants did not contract for the parking garage and its security, the two named
    plaintiffs report different reactions to the condition of the trash bins, and many tenants
    never use the elevator. Thus, as with the third cause of action for breach of the implied
    warranty of habitability, individual factual issues predominate.
    15
    c. The second cause of action: the trial court did not abuse its discretion by
    denying certification of plaintiffs’ retaliation claim for lack of commonality and lack of
    an adequate representative.
    In the second cause of action, plaintiffs allege that after the property was placed in
    REAP, the landlord “harassed and retaliated against the tenants by demanding rent
    exceeding the reduced amounts,” by issuing notices falsely stating that the tenants were
    obligated to pay the full rent amount directly to the landlord, by issuing three-day notices
    to pay rent or quit, or by issuing notices falsely stating that the tenants owed the landlord
    hundreds and sometimes thousands of dollars in past due rent.
    The trial court denied certification of a class for the second cause of action
    because the “REAP program gives tenants the choice of paying full or reduced rent to the
    landlord or to the City” and defendants had shown that “some tenants voluntarily chose to
    continue paying their full rent to the landlord.”
    Plaintiffs contend the trial court‟s ruling denying class certification was based on
    an erroneous legal assumption because, they argue, a landlord of property in REAP
    “cannot accept more than the reduced rent.” For this proposition, plaintiffs cite Los
    Angeles Municipal Code section 151.04(A), which is a provision of the RSO. As noted,
    section 151.04 states: “It shall be unlawful for any landlord to demand, accept or retain
    more than the maximum adjusted rent permitted pursuant to this chapter or regulation or
    orders adopted pursuant to this chapter.” (L.A. Mun. Code, § 151.04(A), italics added.)
    While an RSO tenant may not acquiesce to paying more than the maximum adjusted rent
    permitted (Gombiner v. Swartz (2008) 
    167 Cal. App. 4th 1365
    , 1372 [“a landlord cannot,
    even with the tenant‟s acquiescence or by mutual agreement, circumvent that which the
    law prohibits” in RSO section 151.04]), the RSO is contained in an entirely different
    chapter of the Municipal Code -- Chapter XV -- than REAP, which is found in Chapter
    XVI. Section 151.04(A) of the Los Angeles Municipal Code is not authority for
    plaintiffs‟ contention that the trial court made an erroneous legal assumption in ruling
    that tenants have the option of paying the full amount of rent to the landlord under REAP.
    16
    Plaintiffs argue it stands to reason that the landlord of REAP property should be
    precluded from demanding the full amount of rent lest landlords try to intimidate tenants.
    However, the City, who enacted the RSO Chapter XV, knew how to forbid landlords
    from demanding, accepting, or retaining rent in excess of the maximum adjusted rent
    (L.A. Mun. Code, § 151.04), but noticeably did not enact a similar provision in REAP,
    Chapter XVI. To be sure, REAP does contain tenant protections. Landlords may not
    bring unlawful detainer actions on the basis of nonpayment of rent if the tenant is paying
    rent into the escrow account. (L.A. Mun. Code, § 162.09(A).) A landlord “who retaliates
    against a tenant for the tenant‟s . . . exercise of rights or duties under this article shall be
    liable in a civil action for damages.” (L.A. Mun. Code, § 162.09(C).) And, landlords
    “shall not increase the rent” for the current or subsequent tenants during the REAP period
    and for a certain time thereafter. (L.A. Mun. Code, § 162.09(B), italics added.) Yet, this
    last prohibition against increasing the rent, does not use the phrase “maximum adjusted
    rent,” as defined in section 151.02 and as referred to by section 151.04. Plaintiffs have
    not cited us to a provision of REAP that precludes landlords from accepting and tenants
    from paying the full amount of rent notwithstanding his or her apartment is in REAP.
    Rich v. Schwab (1984) 
    162 Cal. App. 3d 739
    , does not aid plaintiffs. There, the
    tenants sued their landlord for increasing rents to a mobile home park without giving
    90 days‟ notice in violation of Civil Code section 798.30 for the purpose of retaliating
    against the tenants for organizing and petitioning the city for rent control under
    Civil Code section 1942.5. (Rich v. Schwab, at p. 742.) Certification of a class of tenants
    was proper there because of the predominance of common questions of law and fact: The
    rent increase notice to all tenants in Rich violated Civil Code section 798.30. (Rich v.
    Schwab, at pp. 744-745.) Here, however, REAP does not preclude tenants from paying
    the full amount of rent to the landlord. Therefore, individual issues predominate about
    who paid the full amount voluntarily and who did so because they were intimidated.
    More important, however, the trial court identified another obstacle to certification
    of the second cause of action, namely a problem of adequacy of representation. “ „ “The
    cases uniformly hold that a plaintiff seeking to maintain a class action must be a member
    17
    of the class he claims to represent.” ‟ ” (Caro v. Procter & Gamble Co. (1993) 
    18 Cal. App. 4th 644
    , 663.) Hendleman‟s claim under the second cause of action is barred by
    the statute of limitations; and Aaronson was not a tenant between March and June 2007.
    As defined, a tenant is “any tenant, lessee, or occupant under a written lease or rental
    agreement, or any tenant, subtenant, sublessee or other person entitled to use or occupy a
    rental unit and who submitted one or more rental payments that were accepted by the
    Landlord.” Aaronson did not live in her apartment under a lease and she paid rent
    directly to the tenant of that apartment until August 2007, after the property was removed
    from REAP and beyond the proposed subclass period. Thus, there is no representative
    for the second cause of action. There was no error in denying the certification motion as
    to the second cause of action.
    d. The fourth cause of action: The trial court did not abuse its discretion in
    denying certification of the nuisance cause of action for lack of commonality.
    Plaintiffs alleged the landlord‟s harassment of tenants by issuing notices
    demanding rent, “as well as the defective conditions of the Property . . . constitute a
    nuisance” in that they are injurious to tenants‟ health and comfortable enjoyment of the
    property. In denying plaintiffs‟ certification motion, the trial court ruled that individual
    factual and legal issues predominate. We agree.
    “Code of Civil Procedure section 731 specifically authorizes an action by any
    person whose property is injuriously affected, or whose enjoyment of property is lessened
    by a nuisance, as the same is defined in Civil Code section 3479 (see also 47 Cal.Jur.3d,
    Nuisance, § 59, p. 299). Civil Code section 3479 defines a nuisance as „[a]nything which
    is injurious to health, or is indecent or offensive to the senses, or an obstruction to the
    free use of property, so as to interfere with the comfortable enjoyment of life or
    property . . . .‟ ” (Stoiber v. Honeychuck (1980) 
    101 Cal. App. 3d 903
    , 919.) “The
    statutory definition of nuisance appears to be broad enough to encompass almost any
    conceivable type of interference with the enjoyment or use of land or property.” (Ibid.)
    “ „It is settled that, regardless of whether the occupant of land has sustained physical
    injury, he may recover damages for the discomfort and annoyance of himself and the
    18
    members of his family and for mental suffering occasioned by fear for the safety of
    himself and his family when such discomfort or suffering has been proximately caused
    by a trespass or a nuisance.‟ ” (Id. at p. 920.) The nuisance plaintiff must show “a
    substantial interference with the use and enjoyment of the premises not merely
    de minimis interference.” (Ibid., italics added)
    City of San Jose v. Superior Court, supra, 
    12 Cal. 3d 447
     involved the certification
    of a class of nuisance plaintiffs. There, the plaintiffs, who lived in the flight pattern of
    the San Jose airport, sued the city seeking recovery for diminution in the market value of
    their properties caused by airplane noise, vapor, dust, and vibration. (Id. at p. 453.) The
    Supreme Court vacated the order certifying a class, explaining: “the present action for
    nuisance and inverse condemnation is predicated on facts peculiar to each prospective
    plaintiff. An approaching or departing aircraft may or may not give rise to actionable
    nuisance or inverse condemnation depending on a myriad of individualized evidentiary
    factors. While landing or departure may be a fact common to all, liability can be
    established only after extensive examination of the circumstances surrounding each
    party. Development, use, topography, zoning, physical condition, and relative location
    are among the many important criteria to be considered. No one factor, not even noise
    level, will be determinative as to all parcels.” (Id. at pp. 460-461, italics added, fn.
    omitted.)
    Likewise here, as explained with respect to the third cause of action for breach of
    the implied warranty of habitability, even if the existence of the code violations and
    service reductions in the common areas of the property were subject to common proof,
    whether a tenant has suffered discomfort and annoyance from an intermittently operating
    elevator, defects in the garage security, trash, inoperable fire-exit door, or
    weatherproofing problems, or was intimidated by the landlord depends on facts specific
    to each particular tenant. Whether the nuisance is actionable can only be established after
    examination of the circumstances of each tenant, such as the location of each tenant‟s
    unit, whether and how much a particular tenant used the specific service or was affected
    19
    by its reduction, or felt harassed by the landlord‟s demands for rent. (City of San Jose v.
    Superior Court, supra, 12 Cal.3d at p. 459.)
    Plaintiffs argue on appeal that the trial court omitted to discuss the possibility of
    certifying a remedy class for the prayer for injunctive relief. However, we must “ignore
    any unexpressed grounds” for denial of certification and need not reverse simply because
    the court failed to address the injunction issue where the court‟s stated reason was
    sufficient to justify the denial of the certification motion as to the fourth cause of action
    for nuisance. (Kaldenbach v. Mutual of Omaha Life Ins. Co., supra, 178 Cal.App.4th at
    p. 844.)
    e. The fifth cause of action: the trial court did not abuse its discretion in denying
    plaintiffs’ abuse of process claim for lack of numerosity.
    Plaintiffs‟ fifth cause of action for abuse of process alleges that on April 12, 2007,
    the landlord issued three-day notices to pay rent or to quit to “several tenants residing at
    the Property” without intending to evict the recipients and without contemplating
    litigation, and that “many tenants to whom three-day notices were issued” paid more than
    the reduced rent amount imposed by the LAHD. (Italics added.) Certification of a class
    for this cause of action was inappropriate, according to the trial court, because among
    other things, the class definition proposed by the plaintiffs, all tenants from January 2005
    to September 2010, is far more expansive than the April 12, 2007 date. Plaintiffs offered
    to redefine the class to include a subclass of tenants who received notices in April and
    June 2007. The trial court properly concluded that this would restructure the class
    configuration as proposed in plaintiffs‟ motion for certification and plaintiffs had not
    justified the proposed subclass in terms of numerosity, ascertainability, commonality, and
    adequacy of representation.
    The record supports the trial court‟s ruling. For example, plaintiffs assert that 18
    members of the class received three-day notices and of those, a smaller amount, “many,”
    paid more than the REAP imposed rent. “For a class to be considered ascertainable, its
    members must have a plausible cause of action against the defendant. [Citation.] If
    multiple plaintiffs fail to meet this elementary standard, no ascertainable class exists, and
    20
    a class action may not be maintained. [Citation.]” (American Suzuki Motor Corp. v.
    Superior Court (1995) 
    37 Cal. App. 4th 1291
    , 1294-1295, disapproved on another point in
    Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 442-443.)
    f. Amendment
    Both on appeal and during oral argument in the trial court, plaintiffs made
    repeated offers to redefine the class or subclass, or to certify a class with respect to
    certain allegations but not others, or damages only.5 Plaintiffs are essentially asking this
    court not to act as a court of review, but to rule on the class certification anew, based on
    representations made after plaintiffs filed their motion for certification. That is not the
    function of the appellate court. (Sav–On Drug Stores, Inc. v. Superior Court, supra,
    
    34 Cal. 4th 319
    , 326; Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 435–436;
    Kaldenbach v. Mutual of Omaha Life Ins. Co., supra, 178 Cal.App.4th at p. 844.)
    Plaintiffs seeking to certify a class have the burden to demonstrate to the trial court
    ascertainability, commonality, and adequacy of the class representatives. (Sav–On Drug
    Stores, Inc. v. Superior Court, supra, at p. 326.) Such showing is not made in argument
    or by adjusting, amending, or jettisoning various allegations or prayers in the complaint
    on the fly. Plaintiffs proposed so many amendments that they are effectively redefining
    their entire class action. If plaintiffs would like to reconsider the shape of their class and
    the class allegations, they must do so in the first instance in the trial court.
    To summarize, the trial court‟s reasoning was correct and it did not use improper
    criteria or erroneous legal assumptions. As the result of our conclusion that the court did
    not abuse its discretion in denying certification of all five of plaintiffs‟ causes of action
    5
    For example, plaintiffs‟ certification motion seeks to include a class of tenants
    “during any part of the time period of January 22, 2005 to the present,” i.e., September
    2010. However, both below and on appeal, plaintiffs repeatedly assert that they are only
    seeking damages for violations that the landlord did not timely correct for a 10 month
    period between May 2006 and March 2007 causing acceptance into REAP. Plaintiffs
    argue on appeal that the class could be redefined or a subclass could be certified around
    the dates. Plaintiffs have yet to explain this discrepancy in dates, although the trial court
    raised it in its ruling denying certification.
    21
    on the basis that individual issues predominate, we need not address plaintiffs‟ other
    challenges to the trial court‟s ruling. (Kaldenbach v. Mutual of Omaha Life Ins. Co.,
    supra, 178 Cal.App.4th at p. 844.)
    DISPOSITION
    The order is affirmed. Respondents to recover costs on appeal.
    ALDRICH, J.
    We concur:
    CROSKEY, Acting P. J.
    KITCHING, J.
    22
    Filed 8/20/13
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    DAVID HENDLEMAN et al.,                                 B235404
    Plaintiffs and Appellants,                      (Los Angeles County
    Super. Ct. No. BC406059)
    v.
    ORDER CERTIFYING OPINION
    LOS ALTOS APARTMENTS, L.P., et al.,                     FOR PUBLICATION
    [NO CHANGE IN JUDGMENT]
    Defendants and Respondents.
    THE COURT:
    The Los Altos Apartments, L.P., et al. has requested that our opinion, filed on
    July 22, 2013, be certified for publication. It appears that our opinion meets the standards
    set forth in California Rules of Court, rule 8.1105(c). The request is granted. The
    opinion is ordered published in the Official Reports.
    [There is no change in the Judgment.]