Barboza v. Osuna CA2/8

Filed 1/12/21 Barboza v. Osuna CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MIGUEL BARBOZA, B303651
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC706832)
v.
ELENA OSUNA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Elaine Lu, Judge. Affirmed.
LOSMP and Shane M. Popp for Defendant and Appellant.
The Law Office of Marcus Gomez and Marcus Gomez for
Plaintiff and Respondent.
__________________________
SUMMARY
Plaintiff sued defendant under the rent stabilization
ordinance of the City of Los Angeles (L.A. Mun. Code, §§ 151.00
et seq.) for excessive collection of rent during 2011 and 2012.
After a bench trial, the court rejected defendant’s assertion the
statute of limitations barred the claim, ruling the delayed
discovery rule applied to toll the statute. The court found
defendant collected $6,930 of rent in excess of the maximum rent,
and awarded plaintiff three times that amount as provided under
the ordinance. (§ 151.10, subd. A.) (All unidentified section
references are to the rent stabilization ordinance.)
Defendant appeals, contending the delayed discovery rule
does not apply, plaintiff did not prove unlawful collection of rent
under the rent stabilization ordinance, and the trial court erred
in calculating damages. None of these claims has merit, so we
affirm the judgment.
FACTS
Since at least 2008, plaintiff Miguel Barboza lived in a
“rear home”—a garage unit at the rear of a property on 7th Street
in Los Angeles. There was no permit for the garage unit, and
there is no evidence it was registered under the rent stabilization
ordinance.
In 2008, plaintiff paid $600 a month in rent to his father.
At some point, plaintiff’s sister, defendant Elena Osuna, took
charge of managing the property, and in 2011 she raised
plaintiff’s rent to $900 a month. Plaintiff paid approximately
$900 a month during 2011 and the first 10 months of 2012. After
a family discussion, the rent went back down to $600. Rent
increases after that did not exceed 3 percent. Plaintiff did not
2
receive any notice from defendant, or anyone else, that his unit
was subject to the rent control ordinance.
In August 2017, defendant started eviction proceedings.
Her action against plaintiff was resolved by an unlawful detainer
stipulation and judgment, with defendant obtaining possession of
the premises and paying plaintiff $19,000 for relocation
expenses.1 Before August 2017, plaintiff was not aware the rent
stabilization ordinance applied to his residence.
On May 18, 2018, plaintiff filed this lawsuit. By the time of
trial, the only cause of action remaining was the third cause of
action for unlawful collection of rent and excessive collection of
rent.
At trial, the facts we have described were established.
Receipts for the amounts of rent plaintiff paid in 2011 ($10,950)
and 2012 ($9,180 for the first 10 months) were placed in evidence.
(The amounts varied from month to month, but averaged more
than $900 a month.)
Defendant testified that the increase from $600 to $900 per
month “was not an increase in rent,” but rather “trying to catch
up in the past unpaid rents.” She also testified she sent plaintiff
letters, starting in 2015, about the 3 percent rent increases
“according to the rent control,” and defendant was lying when he
testified he did not know the unit was under rent control until
2017.
1 The copies in the record of the stipulation and judgment
are largely illegible. However, a trial court order describes the
document, including that “[a]s a further condition of settlement,
the parties stipulated to ‘waive all other rights as against each
other,’ and ‘[Miguel A. Barboza’s] rights under the lease or rental
agreement [were] forfeited.’ ” (First brackets added.)
3
The trial court observed defendant was required to deliver
a registration statement annually to plaintiff, and did not do so,
continuing to accept rent during the entire time period. The trial
court found the delayed discovery rule applied. The court
credited plaintiff’s testimony “that he did not find out about this”
until the unlawful detainer action in August 2017. The court
rejected defendant’s testimony she sent letters to plaintiff,
observing “she’s failed to produce the letters,” so the court could
not tell whether they were sufficient to put plaintiff on notice his
unit “should have been rent controlled.” The court also did not
credit defendant’s testimony that the increase to $900 was to
catch up on arrears in rent before 2011.
The court found the amounts paid in excess of $600 per
month for 22 months was excess rent for which treble damages
should be paid to plaintiff. The total excess rent was $6,930, so
the court awarded damages of $20,790, plus attorney fees and
costs.2
Judgment was entered on November 12, 2019, and
defendant filed a timely appeal.
DISCUSSION
As we indicated at the outset, we find no merit in
defendant’s contentions concerning the statute of limitations,
failure of proof, or error in calculating damages. We preface our
discussion with a brief summary of legal principles.
2 For 2011, the excess rent paid was $3,750 ($10,950 (the
aggregate amount plaintiff paid) minus $7,200 ($600 times 12)).
For 2012, the excess rent paid was $3,180 ($9,180 (the aggregate
amount paid for the first 10 months) minus $6,000 ($600 times
10)).
4
The rent stabilization ordinance “permits a landlord to
impose a ‘maximum adjusted rent’ during a given period—
determined by a baseline ‘maximum rent’ for a preceding period
and an allowable adjustment, which is ordinarily a percentage of
the baseline ‘maximum rent.’ ” (Carter v. Cohen (2010)
188 Cal.App.4th 1038, 1044.) The ordinance makes it unlawful
“to demand, accept or retain more than the maximum adjusted
rent permitted” by the ordinance or regulations adopted pursuant
to the ordinance. (§ 151.04, subd. A.) The ordinance obliges
landlords to register rental units, and provides that “after
April 30, 1983, no landlord shall demand or accept rent for a
rental unit without first serving a copy of a valid registration or
annual registration renewal statement on the tenant of that
rental unit.” (§ 151.05, subd. A.) The rent stabilization
ordinance also provides remedies for demanding or accepting
excessive rent, including treble damages, plus attorney fees and
costs. (§ 151.10, subd. A.)3
3 “Any person who demands, accepts or retains any payment
of rent in excess of the maximum rent or maximum adjusted rent
in violation of the provisions of this chapter, or any regulations or
orders promulgated hereunder, shall be liable in a civil action to
the person from whom such payment is demanded, accepted or
retained for damages of three times the amount by which the
payment or payments demanded, accepted or retained exceed the
maximum rent or maximum adjusted rent which could be
lawfully demanded, accepted or retained together with
reasonable attorneys’ fees and costs as determined by the court.”
(§ 151.10, subd. A.)
5
1. The Statute of Limitations
Defendant contends a three-year statute of limitations
applies to plaintiff’s excessive rent claim (Code Civ. Proc., § 338,
subd. (a)), and a one-year statute applies to the penalty trebling
the damages (Code Civ. Proc., § 340, subd. (a)). Since the
excessive rent claim is for rents paid in 2011 and 2012, the claims
would be barred unless the discovery rule applies. The discovery
rule “postpones accrual of a cause of action until the plaintiff
discovers, or has reason to discover, the cause of action.”
(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.)
Here, the trial court credited plaintiff’s testimony he did
not discover his unit was subject to the rent stabilization
ordinance until August 2017, when defendant filed the unlawful
detainer action against him. The court found plaintiff “met his
burden of showing delayed discovery because he never got a
registration or annual certificate.”
Defendant insists the discovery rule does not apply “for
several reasons.” First, defendant says the rule does not apply to
a landlord-tenant case but cites no authority to support that
proposition. Second, defendant contends plaintiff did not plead in
his complaint any facts relating to the time and manner he
discovered his cause of action or his inability to discover it
earlier. But this case was decided after a trial, not on demurrer,
so the question is what the evidence showed. (Defendant
demurred to the cause of action for excessive rent, and the court
overruled the demurrer, but defendant did not demur based on
the statute of limitations.) And finally, defendant asserts the
rent increase from $600 to $900 “would put a reasonable person
on notice to investigate.” Defendant does not explain why a rent
6
hike would put a tenant on notice that his unit is subject to rent
control.
In short, defendant cites neither evidence nor authority to
support her claim the trial court erred in applying the discovery
rule to toll the statute of limitations.
2. The Claimed Failure of Proof
Defendant next argues plaintiff did not prove the elements
of his excessive rent claim. She makes an elaborate argument
that the evidence does not establish the original date of the lease
and the original amount of rent under the lease. Therefore, she
claims, the “maximum rent” and “maximum adjusted rent”
cannot be calculated, so there can be no determination the rent
was excessive. Any uncertainty as to the original date of the
lease and original monthly rent amounts is due to the fact
defendant did not register the unit as required by law. There is
substantial evidence plaintiff had been living at the premises
since at least 2008, paying $600 a month in rent, and that
defendant raised the rent to $900 in 2011—a 50 percent increase.
No more is required. (See Carter v. Cohen, supra,
188 Cal.App.4th at pp. 1046–1049 [affirming jury award of
excessive rent for unregistered guesthouse].)
Defendant appears to believe that Lyles v. Sangadeo-Patel
(2014) 225 Cal.App.4th 759 (Lyles) supports her claim, but it does
not. The plaintiff in Lyles sought restitution of all the rent she
had paid for all the years of her tenancy, as well as treble
damages (id. at p. 763), arguing her “maximum rent” was zero
because the landlord failed to serve her with registration
statements as required by section 151.05, subdivision A. (Lyles,
at p. 766.) Lyles rejected that claim. The court explained, among
other points, that the tenant’s remedy for the landlord’s violation
7
was “to withhold rent to which the landlord is otherwise entitled”
until the landlord complies with the requirement. (Lyles, at
pp. 766–767; see § 151.11, subd. B.) Once the landlord complies,
“the tenant becomes obligated to pay the current rent and any
back rent withheld.” (Lyles, at p. 765; see § 151.11, subd. B.)
In short, Lyles is not a case involving excessive rent. As the
court explained, the penalty provision (§ 151.10, subd. A) “applies
only when a landlord ‘demands, accepts or retains any payment
of rent in excess of the maximum rent . . . in violation of [the
ordinance].’ ” (Lyles, supra, 225 Cal.App.4th at p. 767.)
Plaintiff’s claim here is for excessive rent, and Lyles is of no help
to defendant.
3. The Damages Calculation
Defendant makes similarly inapt arguments to challenge
the trial court’s calculation of damages. Again, defendant cites
the complaint and not the evidence adduced at trial. Then
defendant presents a chart purporting to show the maximum
rent in 2005 and the maximum adjusted rent in the years 2006 to
2012—none of which has any basis in the evidence.
In sum, defendant has failed to give a full and fair
summary of the record and has failed to make reasoned
arguments supported by legal authorities to support her claims of
error.
DISPOSITION
The judgment is affirmed. Plaintiff shall recover his costs
on appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J. STRATTON, J.
8