Odulate v. Harkins CA1/4

Filed 9/23/20 Odulate v. Harkins CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION FOUR

MOBOLANLE ODULATE,
Plaintiff and Appellant,
A155889
v.
BILL HARKINS, et al., (City & County of San Francisco
Super. Ct. No. CBC17556590)
Defendants and Respondents.

Plaintiff Mobolanle Odulate brought this action alleging tenant
harassment in violation of section 37.10B of San Francisco’s Residential Rent
Stabilization and Arbitration Ordinance (S.F. Admin. Code, ch. 37, § 37.10B
(Rent Ordinance), threats in violation of her civil rights (Civ. Code, § 52.1),
assault, and negligence. The jury found against her and in favor of the
building’s owner, John Wai, Wai’s living trust, and Wai’s real estate broker,
Bill Harkins, on all causes of action presented to it. Plaintiff contends that
the verdict was not supported by substantial evidence, that the trial court
committed instructional error regarding the law of landlord-tenant relations,
and that it erred in not allowing the jury to consider her cause of action for
negligence. We shall affirm the judgment.

1
 FACTUAL AND PROCEDURAL BACKGROUND1
The Rental
Plaintiff moved into an apartment on Fulton Street in San Francisco in
2015. She booked the unit through the rental platform AirBNB; she rented
one room in a five-room apartment, with shared use of common areas. Her
rent was $2,000 a month.
Iskra Astudillo was the AirBNB host. He leased all six apartments in
the building from Wai on a month-to-month basis, and rented the bedrooms
out through AirBNB. Most of the rooms were used by tourists rather than
long-term residents.
Plaintiff’s Testimony
By early 2016, plaintiff was having difficulties paying rent. In March
2016, Astudillo told plaintiff she could pay the rent to him directly, and they
set up a payment plan with the understanding that plaintiff would apply for
rental assistance. Astudillo made multiple requests for plaintiff to pay rent
but, except for $800, she made no further rent payments. By the summer,
Astudillo was informing plaintiff the room was fully booked for the summer
and asking her to leave.
Plaintiff testified that in September 2016, she received text messages
from Astudillo saying they were her three-day notice to quit the premises. In
October 2016, Astudillo served plaintiff with a “proper” three-day notice. By
that time, he had asked her many times to pay the rent or move out.

1 We remind defendants of their duty to support factual assertions with
citations to the record by volume and page number. (Cal. Rules of Court, rule
8.204(a)(1)(C); see Respondents’ Brief at pp. 7–9, 18, 22–26.) That obligation
extends not only to matter found in the reporter’s transcript but also to that
found in the clerk’s transcript or, in this case, the appendix in lieu of clerk’s
transcript. (Id., rule 8.124.)

2
 Astudillo then sent plaintiff an email offering either to allow her to stay
in the apartment as the AirBNB host or to forgive her back rent and sign a
lease, and telling her, “ ‘All the messages and steps we took in this last month
or two are all pressure from upstairs and from the owners.’ ” She told him
she needed time to consider his offer, and before she responded to him,
Astudillo announced all six units in the building were being closed down. A
notice was posted on the door giving a deadline to move out of January 1,
2017. On December 31, 2016, plaintiff told Astudillo she was not moving out.
Plaintiff called the police on January 1, 2017, and they came that
morning. The same morning a mover, Martin, sought to take all the
furniture from the building, including plaintiff’s bedroom, but ceased when
the police intervened. Martin also turned off the electricity to the building,
but turned it back on at the direction of the police a couple of hours later.
Later the same day, plaintiff received an email from Harkins,
indicating he was writing on behalf of the building’s owner and stating that
Astudillo had told him plaintiff was a trespasser, not a tenant, and—falsely,
she testified—that she had not been in the apartment as of December 21,
2016. The email said that if they could not come to an agreement, Harkins
would come with the police and press trespassing charges, and told her the
police had advised him he had the right to use whatever force was necessary
if he found a trespasser in an empty apartment.
In the early afternoon of January 2, 2017, Martin again turned off the
power to the building, then turned it on again. Later that day, Harkins—
whom plaintiff understood to be one of the owners of the building—went into
the apartment and banged on plaintiff’s bedroom door, saying that he would
break the door down if she did not open it. He said he would call the police,
and plaintiff asked him to do so. When the police arrived, they questioned

3
plaintiff, and she heard Harkins tell them she was a “professional con
woman.” She could later hear the police speaking with Astudillo on the
phone. The police told Harkins they would not remove her and that they
would arrest him if he did so himself.
After the police left, Harkins told plaintiff he was willing to go to jail to
get rid of her. Plaintiff did not respond, and Harkins said, “I’m going to come
back with a gun.” He then sat on her bed in a “crumbled pose” and asked
why she had not replied to his email. He made a number of offers to get her
to leave the apartment, including renting a hotel room for her and giving her
$2,000. She said she would get back to him the next day.
A friend of plaintiff’s, who was on the telephone with her during this
incident and could hear the conversation, confirmed that Hawkins made a
comment about coming back with a gun.
Plaintiff sent Harkins an email on January 4, 2017, telling him she was
working with someone at a tenant’s union and that she was looking for an
attorney. The email he sent in response referred to her as a “squatter,” and
said she had committed “criminal trespass invasion.” The email also referred
to a neighbor who was allegedly a “dangerous criminal running a bike chop
shop and meth lab” and who was going to burn the building down.
Later that evening, Harkins came to the apartment. Plaintiff called
911 on her speakerphone; when Harkins heard her, he yelled, “Squatter,” and
left the apartment. The next day, he sent her an email telling her he did not
have to give notice to enter the apartment.
On January 19, 2017, a handyman who worked in the building, Pang,
showed up and turned off the power. He yelled at plaintiff and swung his
arms wildly, close to her face. She called the police; they left without doing
anything. Pang followed plaintiff to her bedroom door and put his boot in the

4
door to prevent her from closing it. Pang spoke on his phone in what sounded
like a Chinese language, then backed away from the door. Pang then
changed the locks on the other bedroom doors. Plaintiff later saw that the
dryer had stopped working. Over the next few days, people painted the
building, and the fumes made plaintiff feel sick. Harkins and others entered
the apartment between six and 12 times after February 1, 2017.
Astudillo filed an eviction action against plaintiff in March 2017.
Plaintiff and Astudillo reached a settlement in May 2017, under which she
moved out on July 11, 2017.
Harkins’s Testimony
Harkins is a licensed real estate broker. He worked as a real estate
broker for many properties owned by John Wai, including the property at
issue here. Wai leased the property to Astudillo in 2015. It was stipulated
that Harkins acted as Wai’s agent. Wai, who was approximately 97 years
old, did not testify at trial.
Before Astudillo leased the property, squatters from a building next
door had occupied it; when police officers removed them, they found guns,
burglary equipment, stolen bicycles, and drug paraphernalia. Even after
being removed, the squatters kept returning until Astudillo leased the
building for AirBNB rentals.
Harkins denied that he acted on behalf of Astudillo. In September or
October 2016, Astudillo asked Hawkins for advice on how to handle the
situation with plaintiff, and Harkins advised him to talk to an attorney.
During December 2016, Harkins looked through the apartment and saw that
plaintiff’s room did not look occupied. He considered plaintiff a trespasser
based on the information Astudillo had given him, which was that plaintiff
“kept coming and going, breaking in, coming and going.” Harkins advised

5
Astudillo to turn off the electricity as he normally would when vacating a
building.
On January 2, 2017, Harkins went to the apartment because the police
said they needed a representative of the owner present in order to remove a
squatter. He asked plaintiff whether she had proof that she was a tenant,
and she said no. He acknowledged saying something about returning with a
gun, but said he made the comment to the police officers as “a joking term.”
Harkins testified that after the police left on January 2, he went to
plaintiff’s door, and she motioned to him and he sat on her bed, the only place
to sit in the apartment. Plaintiff said Harkins had been calling her terrible
names and she needed to go to the emergency room, and Harkins offered to
drive her, telling her he did not want any physical harm to come to her over
the apartment. Plaintiff then said she did not need to go to the emergency
room. Harkins offered to give her $2,000 and pay for her to stay in a hotel
room for two weeks. She said she needed to think about it. A few minutes
later, plaintiff refused Harkins’s offer, and he warned plaintiff of the danger
of squatters returning to the apartment and made sure she knew how to lock
the doors securely.
The next day, January 3, 2017, after hearing about “something going
on,” Harkins went to the apartment and checked to see if anyone was in any
of the rooms. A few days later, Harkins went to the building and saw
evidence that someone had broken into one of the other apartments and
someone had broken into the lockboxes.
On January 7, Harkins sent an email to Astudillo saying that the “right
thing to do is go after this woman,” that a “larger lawsuit” would cost money,
and that he had sent the police additional information. Astudillo responded,

6
“I agree. I want to make her life hell without it costing us too much. Got the
info. You’re a rock star. Thanks.”
Harkins testified that he was aware he did not have the right to remove
plaintiff from the building physically, but that police officers had told him he
could use whatever force was necessary and that he had so informed plaintiff
in an email.
Harkins had also been the agent for leasing other apartments owned by
Wai to Astudillo. During email communications with Harkins, Astudillo said
he would offer plaintiff money, and continued, “I don’t want any problems or
issues since I still plan to do more business with you . . .”
Astudillo’s Testimony
Astudillo testified that plaintiff paid rent for her room through AirBNB
for about two and a half months after she first rented it in September 2015.
About a month and a half after her AirBNB reservation ended, plaintiff sent
Astudillo $800. She promised to make more payments but never did so. She
also promised to leave the apartment.
In September 2016, Astudillo and his business partner sought
Harkins’s advice about how to evict plaintiff. Harkins suggested they work
with a lawyer and recommended one. In October, Astudillo served plaintiff
with a three-day notice to quit the premises.
After San Francisco’s short-term rental laws changed, Astudillo decided
to go out of business as an AirBNB host. He came to an agreement with Wai
that he would vacate the property at the end of the year and turn it back over
to Wai. In late October or early November 2016, Astudillo posted a notice
that he would be vacating the building as of January 1, 2017. On December
31, plaintiff told him she would not be moving out. Because the apartment

7
was not vacated, Astudillo continued to pay rent to Wai until plaintiff moved
out in July 2017.
On January 2, 2017, Astudillo wrote an email to Harkins telling him
the “squatter” had come back to the building and convinced the police she had
a tenancy. He indicated plaintiff had not stayed in the apartment
consistently: the first time she “reappeared” after March was in July. She
broke in and squatted in September and stayed for three weeks, she squatted
a few weeks in November, then moved out and disappeared, and she came
back to the building in December. Astudillo’s information was based on
reports from the maids who cleaned the other rooms after guests vacated
them.
The Verdicts
The jury found in favor of defendants on all causes of action presented
to it. Specifically, it found Harkins did not violate Section 37.10B of the Rent
Ordinance. As to the cause of action under Civil Code section 52.1, the jury
found that although Harkins made threats of violence against plaintiff or her
property, his threats did not cause her to believe reasonably that if she
exercised her right to remain in the unit, he would commit violence against
her and had the apparent ability to do so. Finally, on the cause of action for
assault, the jury found Harkins did not threaten to touch plaintiff in a
harmful manner. The cause of action for negligence was not presented to the
jury. The trial court entered judgment in favor of defendant.
DISCUSSION
I. The Rent Ordinance
Section 37.10B of the Rent Ordinance, entitled “Tenant Harassment,”
prohibits a “landlord” or any “agent, contractor, subcontractor or employee of
the landlord” from doing various acts “in bad faith.” (Rent Ordinance,

8
§ 37.10B(a).) The prohibited acts include interrupting or failing to provide
required housing services; abusing a landlord’s right of access into a rental
housing unit; using fraud, intimidation, or coercion to influence a tenant to
vacate a housing unit; threatening the tenant by word or gesture with
physical harm; and interfering with the tenant’s right to quiet enjoyment of
the unit or right to privacy. (Ibid.)
The ordinance defines a landlord as “[a]n owner, lessor, sublessor, who
receives or is entitled to receive rent for the use and occupancy of any
residential rental unit or portion thereof in the City and County of San
Francisco, and the agent, representative or successor of any of the foregoing.”
(Rent Ordinance, § 37.2(h).) A tenant is defined as “[a] person entitled by
written or oral agreement, sub-tenancy approved by the landlord, or by
sufferance, to occupy a residential dwelling unit to the exclusion of others.”
(Id., § 37.2(t).)
II. Instruction on Landlord-Tenant Relationship
The trial court instructed the jury: “[A]s between a property owner and
a sublessee, there is no tenancy relationship. In this case [Mobolanle]
Odulate was a sublessee of Iskra Astudillo. Ms. Odulate was not a tenant of
the owner John [Wai].”
During its deliberations, the jury asked for the legal definition of the
terms landlord and tenant. It appears the trial court provided the definitions
found in the rent ordinance. No party had previously asked for the jury to be
instructed pursuant to the Rent Ordinance’s definitions of landlord and
tenant.
Plaintiff acknowledges that the instruction originally given is a correct
statement of California law, in that “[a] subtenant generally has neither
privity of estate nor privity of contract with the original lessor.” (Syufy

9
Enterprises v. City of Oakland (2002) 104 Cal.App.4th 869, 885 (Syufy); see
Johnson v. Couch (1961) 189 Cal.App.2d 687, 691 [no relation of tenancy
between head landlord and sublessee].) She contends, however, that the
instruction should not have been provided in this case because this general
rule does not apply to the Rent Ordinance.
Plaintiff argues that under the Rent Ordinance’s definitions of landlord
and tenant, Harkins and Wai could properly have been found to be her
landlord for purposes of liability under the Rent Ordinance. Accordingly, she
contends, it was error for the court to instruct the jury under the general rule
that there is no tenancy relationship between an owner and a sublessee. Her
position is that Harkins could be found to have violated her rights under the
Rent Ordinance in two ways: first, in that he met the Rent Ordinance’s
definition of a landlord and therefore had direct obligations to her, which he
violated by trying to force her to leave the apartment; and second, in that he
acted as on behalf of Astudillo—plaintiff’s direct landlord—in these efforts.
Under the circumstances before us, we reject plaintiff’s contention that
the trial court committed prejudicial error. First, “[w]hen a trial court gives a
jury instruction which is correct as far as it goes but which is too general or is
incomplete for the state of the evidence, a failure to request an additional or a
qualifying instruction will waive a party’s right to later complain on appeal
about the instruction which was given.” (Suman v. BMW of North America,
Inc. (1994) 23 Cal.App.4th 1, 9 (Suman); see Scofield v. Critical Air Medicine,
Inc. (1996) 45 Cal.App.4th 990, 1010–1011.) Although plaintiff objected to
the instruction below on the ground Wai was her landlord, on appeal she does
not dispute that the instruction correctly expressed the general rule that
under California law, there is no tenancy relationship between a property
owner and a sublessee.

10
 In any case, we are not persuaded that the instruction was incorrect
even under the Rent Ordinance’s definition of landlord and tenant. It is true,
as plaintiff says, that Wai falls within the ordinance’s definition of a
landlord—that is, he is the owner of a building, who receives rent for the use
of a residential unit—and that plaintiff falls within the definition of a tenant.
(Rent Ordinance, § 37.2(h) & (t).) But nothing in the Rent Ordinance evinces
an intent to abrogate the general California rule that, as between an owner
and a subtenant, there is no landlord-tenant relationship—that is, that Wai
was not plaintiff’s landlord. (Compare Cobb v. San Francisco Residential
Rent Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, 348, 352–353
(Cobb) [after tenant moved out, leaving her adult son in apartment, landlord
accepted son as his tenant, not subtenant, by requesting and receiving rent
and negotiating rent increase].) Indeed, the Rent Board’s own interpretation
of the ordinance suggests otherwise.2 In its “Subtenant Petition” form, the
Board explains: “If you are not a party to the rental agreement with the
property owner/manager but you pay rent to a master tenant, you are a
subtenant and the master tenant is your landlord. Since you do not have a
landlord-tenant relationship with the owner/manager, you must assert any
claims concerning your rent against the master tenant.” (Italics added.) (See
California Building Industry Assn. v. Bay Area Air Quality Management Dist.
(2015) 62 Cal.4th 369, 381 [in construing a statute, we consider the
interpretation of the agency charged with implementing it].)
Plaintiff’s reliance on DeZerega v. Meggs (2000) 83 Cal.App.4th 28, does
not persuade us otherwise. The court in DeZerega concluded a subtenant was

2 We grant defendants’ request for judicial notice of the San Francisco
Rent Stabilization and Arbitration Board’s (the Rent Board) “Subtenant
Petition” form.

11
entitled to the eviction control protections of Berkeley’s rent control
ordinance, which defined “ ‘tenant’ ” to mean “ ‘any renter, tenant, subtenant,
lessee, or sublessee of a rental unit, or successor to a renter’s interest, . . . or
any other person entitled to the use or occupancy of such rental unit.’ ” (Id. at
p. 39.) This definition is broader than that in the ordinance before us, which
applies only to one “entitled to occupy a dwelling unit by written or oral
agreement, sub-tenancy approved by the landlord, or by sufferance.” (Rent
Ordinance, § 37.2(t), italics added.) In any case, the question before us is
different from that in DeZerega: not whether plaintiff was entitled to the
Rent Ordinance’s eviction control measures, but whether the jury was
properly instructed that she was not Wai’s tenant. Whether or not plaintiff
was entitled to the eviction protections of San Francisco’s Rent Ordinance, we
see no error in a conclusion that the tenancy relationships ran between
plaintiff and Astudillo on the one hand, and Wai and Astudillo on the other,
not between plaintiff and Wai.
Plaintiff suggests, however, that the evidence would support a
conclusion that she became defendants’ direct tenant as of December 31,
2016, when, she asserts, Astudillo surrendered his lease. We are
unpersuaded. As plaintiff acknowledges, there was no privity of contract
between her and defendants, and the evidence was uncontroverted that
Astudillo in fact did not deliver a vacant building on the agreed-upon date
and that he continued to pay rent for the apartment until plaintiff finally
vacated it. Nor is there evidence that, as in Cobb, Wai accepted plaintiff as
his tenant by requesting or receiving rent from her. (Cobb, supra, 98
Cal.App.4th at pp. 352–353.)
We accordingly reject plaintiff’s claim of error on this ground.

12
 III. Substantial Evidence of Agency
Plaintiff contends the record lacks substantial evidence to support a
finding that Harkins was not aiding and abetting Astudillo or acting as his
agent; as a result, she argues, as a matter of law Harkins was liable under
the Rent Ordinance. This is shown, she contends, by the facts that Harkins
advised Astudillo to turn off the electricity and that he went to the property
on January 2, 2017, as he believed was necessary to have the police remove
plaintiff. In considering such a challenge, we review the evidence in the light
most favorable to the prevailing party, and determine whether there is any
substantial evidence, whether or not contradicted, to support the judgment.
(ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266
(ASP Properties).)
This claim fails. It is undisputed—indeed, it was stipulated—that
Harkins acted on behalf of Wai, the building’s owner. Plaintiff has not met
her burden to show the evidence compels a conclusion that Harkins was
simultaneously acting on behalf of Astudillo or aiding and abetting Astudillo
when he went to the building on January 2, 2017. There is no evidence
Harkins agreed to assist Astudillo or that his actions were intended to accrue
to Astudillo’s benefit, except to the extent Astudillo’s interests overlapped
with Wai’s.
In any event, even if the evidence had established that Harkins aided
and abetted or acted as an agent of Astudillo, that would not establish
plaintiff’s right to any judgment as a matter of law. The special verdict form
for the only cause of action to which this question is relevant, that for tenant
harassment, did not ask the jury to find whether Harkins was Astudillo’s

13
agent or whether he aided and abetted Astudillo.3 Rather, the form asked
simply whether defendants violated section 37.10B of the Rent Ordinance.
The instructions told the jury that a violation of the ordinance took place if a
landlord or landlord’s agent did any of the prohibited acts in bad faith. Here,
there was evidence that Astudillo told Harkins that plaintiff was a trespasser
or a squatter, that Harkins had visited the apartment in December 2016 and
plaintiff’s room appeared unoccupied, and that the property had, indeed, had
a problem with squatters in the past. On this record, rather than concluding
Harkins did not act on behalf of or to assist Astudillo, the jury might well
have concluded Harkins did not violate the Rent Ordinance because he acted
in the good faith belief plaintiff was not a tenant but a trespasser. The
evidence might have supported a contrary conclusion—that Harkins knew
plaintiff was a tenant of Astudillo, entitled to the protections of the Rent
Ordinance—but we cannot say there is no substantial evidence to support the
conclusion that Harkins did not violate the Rent Ordinance because he acted
good faith. (See ASP Properties, supra, 133 Cal.App.4th at p. 1266.)
IV. Instruction on Negligence
One of plaintiff’s causes of action was for negligence, based on an
allegation that defendants negligently interfered with her right to quiet
enjoyment. Defendants included instructions on negligence in their
requested jury instructions, and plaintiff argued the instructions should be
given.

3The other causes of action asked whether Harkins threatened violence
against plaintiff and whether he threatened to touch her in a harmful
manner. The jury found that although he threatened violence, he did not
cause a reasonable belief he would commit violence and was able to do so, and
that he did not threaten to touch her in a harmful manner.

14
 The trial court, however, declined to instruct the jury on negligence. In
doing so, it concluded there was no evidence to support such a theory. That
is, according to the court, there was no evidence defendants’ actions were
negligent, rather than intentional. Plaintiff argued that her theory was that
the Rent Ordinance set the standard of conduct, and defendants negligently
violated her rights under the ordinance. The trial court rejected this
argument on the ground that a violation of the relevant portion of the Rent
Ordinance, section 37.10B, required bad faith conduct.
Plaintiff contends the trial court erred in refusing to instruct the jury
on a theory of negligence, because intentional conduct may also give rise to a
cause of action for negligence. (See American Employer’s Ins. Co. v. Smith
(1980) 105 Cal.App.3d 94, 101 (American Employer’s) [minor’s action in
intentionally setting fires could support cause of action for negligence, for
which insurer must provide coverage].) While recognizing this principle, we
conclude it does not assist plaintiff here.
The elements of a cause of action for negligence are a duty of care, a
breach of duty, and an injury proximately caused by the breach. (Lichtman v.
Siemens Industry Inc. (2017) 16 Cal.App.5th 914, 920.) Plaintiff fails to show
the evidence meets this standard.
First, plaintiff’s complaint alleged defendants’ actions interfered with
her right to quiet enjoyment of the unit. But the covenant of quiet
enjoyment, implied in every lease, requires the landlord to refrain from
activity that interrupts the tenant’s enjoyment of the leased property. (Civ.
Code, § 1927; Spinks v. Equity Residential Briarwood Apartments (2009) 171
Cal.App.4th 1004, 1034 (Spinks); Guntert v. City of Stockton (1976) 55
Cal.App.3d 131, 138.) And, as discussed, plaintiff sublet the apartment from
Astudillo, not from defendants, and under both general California law and

15
the Rent Ordinance, an owner is not the landlord of a subtenant. (Syufy,
supra, 104 Cal.App.4th at p. 885.)
Relying on Marchese v. Standard Realty & Dev. Co. (1977) 74
Cal.App.3d 142, 147, plaintiff argues in passing that an owner may be liable
to a subtenant for breach of the implied covenant of quiet enjoyment; but
Marchese limits that rule to situations in which the owner has expressly
agreed to the sub-tenancy of the named party, thus making a subtenant a
third-party beneficiary to the covenant of quiet enjoyment in the original
lease. (Accord, Spinks, supra, 171 Cal.App.4th at p. 1028 [fact that lease
named occupant by name raised inference it was intended to benefit her
personally].) Furthermore, plaintiff provides no authority that a breach of
the implied covenant of quiet enjoyment, absent a wrongful eviction, gives
rise to a tort cause of action for negligence. (See Bevis v. Terrace View
Partners, LP (2019) 33 Cal.App.5th 230, 250–251 [“California case law has
recognized a tort cause of action for wrongful eviction, including breaches of
the covenant of quiet enjoyment that compel a tenant to vacate, whereas
breach of covenant of quiet enjoyment that does not result in a wrongful
constructive or actual eviction is a breach of contract”]; accord, Ginsberg v.
Gamson (2012) 205 Cal.App.4th 873, 898–902.)
In the circumstances before us, plaintiff has not shown either that Wai
and Harkins owed her a duty of quiet enjoyment or that they can be held
liable for a negligent breach of such a duty.
Plaintiff argued in the trial court that Harkins may be liable in tort
because he acted on behalf of Astudillo, plaintiff’s landlord. But even if
Harkins could be seen as acting on behalf of plaintiff’s landlord, plaintiff has
not shown the evidence supports a theory of negligence. The duty of care she
articulated to support a tort cause of action for breach of the covenant of quiet

16
enjoyment was that required of landlords under the Rent Ordinance, and the
only violation she alleged was of the provision prohibiting tenant
harassment, section 37.10B. But, by its terms, the Rent Ordinance requires
bad faith conduct, rather than mere negligence, for a violation of this
prohibition. (Rent Ordinance, §37.10B.) As a result, American Employer’s
does not assist plaintiff. Unlike the action of the teen who set fires there,
mere negligence here is insufficient to support liability for violation of the
prohibition on tenant harassment. (See American Employer’s, supra, 105
Cal.App.3d at p. 101.)
Plaintiff attempted to avoid this problem in the trial court by arguing
that the Rent Ordinance as a whole provides the applicable standard of care,
and that Harkins “violated the entire Rent Ordinance[,] not just [section]
37.10B.” But she points to no other portion of the ordinance that establishes
duties underlying her cause of action for negligence. Nor does she point to
any other independent duty or standard of care found in California law that
would support a cause of action for negligence. In the circumstances, plaintiff
has not met her burden on appeal to show the trial court erred in refusing to
instruct the jury on this theory.
DISPOSITION
The judgment is affirmed.

17
 _________________________
TUCHER, J.

WE CONCUR:

_________________________
STREETER, Acting P. J.

_________________________
BROWN, J.

Odulate v. Harkins (A155889)

18