Filed 6/29/21 510PacificAve v. Weiss CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
510PACIFICAVE, B304369
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC694882)
v.
AMY REBECCA WEISS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Richard E. Rico, Judge. Affirmed.
Tabatabai & Miyamoto and Farzad Tabatabai for Defendant and
Appellant.
Robert Miller for Plaintiff and Respondent.
Defendant Amy Rebecca Weiss, a tenant in an apartment building
owned by plaintiff 510PacificAve, the fictitious name for Lindeva Living
Trust dated 8/20/03, Kim W. Lu, Trustee (Owner), appeals from the
judgment in a declaratory relief action filed by Owner. Weiss contends
the trial court erred by denying her post-trial request for statutory
damages under the City of Los Angeles Rent Stabilization Ordinance
(L.A. Mun. Code,1 ch. XV, §§ 151.00 et seq.) (LARSO) and by limiting
her to $500 in attorney fees under a provision of her lease that was
unilaterally amended by Owner more than a year before the present
action was filed.
We conclude the trial court did not err in denying Weiss’s request
for statutory damages because she did not raise the issue of such
damages (the determination of which requires the presentation of
evidence by the parties and fact-finding by the trial court) until after
the trial had been completed and the final statement of decision had
been issued. We also conclude the trial court did not err in finding,
based upon the record before it at the time it heard Weiss’s motion for
attorney fees, that the amount of recoverable fees was limited by the
amended attorney fee provision of the lease, and we reject Weiss’s
arguments that the amended provision was an illegal contract.
Accordingly, we affirm the judgment.
1 Further undesignated statutory references are to chapter XV of the
Los Angeles Municipal Code.
2
BACKGROUND
Weiss entered into a lease agreement for a unit in the apartment
building at issue on December 29, 2013, and has occupied that unit
since that time. Owner did not own the building at the time Weiss
entered into the lease; Owner obtained title to the building in June
2014. The building, which is located in Venice, California, is subject to
LARSO.
The lease includes the following provisions that are relevant to
this appeal:
• Paragraph 1 provides that the lease would continue as a
leasehold until December 31, 2014, and would thereafter
become a month-to-month tenancy.
• Paragraph 6 provides that only Weiss could occupy the unit,
and that it would be a breach of the agreement for guests to
stay in the unit for 14 or more days cumulatively during any
12-month period without the owner’s written consent. It also
provides that Weiss would be required to pay additional rent
“at the rate of $100.00 per month or 25% (or the amount
allowed under rent control) of the current monthly rent,
whichever amount is greater, for the period of time that each
additional guest in excess of the above named shall occupy the
premises.”
• Paragraph 15 provides that after the expiration of the lease
period (i.e., Dec. 31, 2014), the terms and conditions of the lease
3
would be subject to change by the owner upon 30 days written
notice.
• Paragraph 16 reiterates that the agreement would be
automatically renewed from month-to-month after the
expiration of the leasing period.
• Paragraph 23, before it was amended, provided that the
prevailing party in any legal action or proceeding brought by
either party was entitled to be reimbursed for all reasonable
attorney fees and costs, but that the parties waived their right
to a jury trial in order to minimize those fees.
• Paragraph 31 incorporates the “House Rules” as part of the
agreement. The House Rules reiterate that no persons other
than those named in the original rental agreement are
permitted to occupy the premises without prior written consent
of the owner.
On January 27, 2017, Owner served Weiss with a notice of change
of terms of tenancy, informing her that, 30 days after service of the
notice, paragraph 23 of the lease (the attorney fees provision) would be
deleted and replaced with a new paragraph 23. The new paragraph 23
provides: “If any legal action or proceeding is brought by Owner or
Renter related to this Agreement, the prevailing party shall be entitled
to recover attorneys fees not to exceed $500.00.” The paragraph no
longer includes a waiver of the parties’ right to a jury trial.
In July 2017, Owner filed a lawsuit (the first action or lawsuit)
against Weiss, Weiss’s mother (who had guaranteed the lease
4
agreement), and Weiss’s then-boyfriend (who was sued as “John Doe”).
The details and allegations in the first action are not relevant to this
case, although a short discussion is necessary for context. Owner’s
complaint asserted claims based upon allegations that Weiss and her
boyfriend damaged two cameras Owner had installed in common areas
of the building. (510PacificAve v. Superior Court (July 27, 2018,
B289549) [nonpub. opn.], at pp. 2-3 (510PacificAve I).)2 Weiss filed a
cross-complaint against Kim W. Lu (in her individual capacity and in
her capacity as trustee of Owner) in January 2018, asserting claims
based upon allegations that Lu had engaged in serial harassment of
Weiss. (Id. at pp. 3-4.)
On February 12, 2018, Owner served Weiss (through her attorney)
a notice of change of terms of tenancy stating: “It has come to the
attention of the owner that there is an unauthorized occupant of
[Weiss’s unit] by the name of Filip Osowski [i.e., Weiss’s then-
boyfriend].” Invoking paragraph 6 of the lease, Owner gave notice that,
beginning 60 days from the date of service of the notice, the rent would
2 Our opinion in 510PacificAve I arose from a writ petition filed by
Owner. When Owner filed the present action, Weiss filed a notice of related
case and the present action was assigned to the judge handling the first
action. Owner filed a challenge to that judge in the present action, but the
judge denied it, finding that the present action was a continuation of the first
action. (510PacificAve I, supra, at pp. 6-7.) We granted Owner’s writ
petition, finding that the legal and factual issues raised in the present action
are distinct from the legal and factual issues raised in the first action, and
that “[t]he resolution of one will have no bearing on the resolution of the
other.” (Id. at p. 10.) On remand, Owner’s peremptory challenge was
accepted, the two cases were unrelated, and the present case was reassigned
back to the originally-assigned judge.
5
increase by 25 percent. Weiss immediately disputed the change of
terms.
Nine days later, Owner filed the present lawsuit seeking
declaratory relief regarding the applicability of paragraph 6. The
complaint described the controversy as follows: “Owner contends that
the rent increase alleged herein is governed by the terms of the lease
and written agreement of the parties, and that the Tenant’s refusal to
pay the increase is a breach of the lease, which increase is not governed
or restricted by any law or ordinance. Owner is informed and believes
and based on such information and belief alleges that the Tenant
contends that the said rental increase is governed and/or restricted by a
city ordinance and that she may refuse to pay the rent increase without
breaching her lease.” The complaint prayed for a judgment (1)
declaring that Weiss is subject to the notice of change of terms
regarding the rent increase and (2) “[f]or such other relief as in the
premises are proper”; Owner did not ask for attorney fees.
In her answer to the complaint, Weiss admitted there was a
controversy between the parties regarding the notice of rent increase,
but denied it was necessary for the court to determine and declare the
rights of the parties. The answer also asserted several affirmative
defenses and prayed that (1) Owner take nothing in the lawsuit; (2)
Weiss recover her costs; (3) Weiss receive all of her attorney fees
incurred in her defense; and (4) Weiss “receives such other and further
6
relief as the Court feels is just and proper.”3 Weiss did not file a cross-
complaint.
A bench trial was conducted by briefs, declarations, stipulated
facts, and a small number of exhibits (all of which were authenticated
by stipulation, and most were admitted by stipulation). Owner’s trial
brief described the relief being sought as a “judicial determination that
a narrow 2011 amendment to the Los Angeles Municipal Code
regulating an ‘additional tenant’ cannot supersede the parties’ initial
written agreement, is a violation of state law and unconstitutionally
vague taking and infringement on the freedom of contract.” Owner
noted that “[i]t is only after a judicial declaration of rights and duties
here that [Owner] will file a separate action to enforce the terms of the
agreement at which time and place the parties can fully probe the
nature and extent of the unauthorized occupancy of the subject unit.”
In her trial brief, Weiss argued that LARSO supersedes the
nonconforming terms of the lease agreement, and the Owner’s attempt
to raise her rent violates LARSO for several reasons, both factual and
legal. Weiss concluded her trial brief by requesting that the trial court
issue a declaratory judgment declaring that (1) LARSO supersedes
paragraph 6 of the lease; (2) LARSO does not allow a rent increase of 25
percent, and does not allow an increase at all unless an unauthorized
3 Owner’s demurrer to Weiss’s original answer was sustained with leave
to amend, and Weiss filed an amended answer. The only difference between
the original and amended answers is that the amended answer includes
factual allegations to support Weiss’s affirmative defenses.
7
guest has occupied the unit for 30 consecutive days; (3) Owner’s attempt
to increase the rent is an attempted pretext eviction; and (4) paragraph
6 of the lease does not authorize a permanent 25 percent increase in
Weiss’s rent. Weiss requested no other relief in her trial brief.
Owner filed an opposition to Weiss’s trial brief, in which Owner
reiterated that “[t]he only question to be resolved” is whether “the
initial written agreement of [Weiss] with [Owner’s] predecessor
govern[s] the specific amounts to be charged for additional
unauthorized occupants.” Weiss’s opposition to Owner’s trial brief
challenged Owner’s interpretation of the law, and for the first time
argued that Owner’s unilateral amendment of the lease to cap the
recoverable attorney fees also violated LARSO. She asked the court to
find the amendment is void and to grant her reasonable attorney fees
(under the original attorney fee provision of lease) if she were to be the
prevailing party.
The trial court issued a detailed tentative decision in which the
court identified the “sole issue” presented by the complaint as “whether
the terms of the lease agreement as altered by Landlord on February
12, 2018 are enforceable against Tenant.” The court reiterated, “To be
clear, the plaintiff-Landlord seeks a legal determination that Tenant is
‘subject to’ the rent increase, not a factual determination that the rent
increase was properly applied.” After a full discussion of the applicable
law, the court concluded: “Because the Notice of Change of Terms
purports to increase rent in excess of the limits of LARSO section
8
151.06(G), the Notice is unenforceable.[4] Paragraph 6 of the Lease
Agreement is valid and enforceable to the extent that it allows rent
increases for additional residents that comport with both the monetary
limits and the thirty-consecutive-days-of-residence requirements of
section 151.06(G). Paragraph 6 is invalid and unenforceable to the
extent that it allows rent increases that do not comport with section
151.06(G).”
Both parties filed objections to the tentative decision. Weiss
objected primarily to a portion of the tentative decision in which the
court addressed Weiss’s requests for relief in her trial brief; specifically,
she objected to the section with the subheading entitled “The court will
not grant further relief.”5 Weiss argued that she was entitled to
4 Section 151.06.G provides, in relevant part: “For a rental unit which
has an additional tenant joining the occupants of the rental unit thereby
resulting in an increase in the number of tenants existing at the inception of
the tenancy: [¶] (a) The landlord may increase the maximum rent or
maximum adjusted rent by an amount not to exceed 10% for each additional
tenant that joins the occupants of the rental unit, [subject to certain
exceptions not relevant here]. [¶] (b) The rental unit shall not be eligible for
a rent increase until the additional tenant has maintained residence in the
rental unit for a minimum of thirty consecutive days.”
5 Under that subheading, the trial court explained it could not declare
more than it had because “[t]o declare anything further would require the
court to further interpret both the lease agreement and LARSO,” and to
make various factual findings and calculations. The court concluded, “These
determinations are not appropriate given the limited scope of the declaratory
relief sought in this action. As discussed above, this is a declaratory action
that seeks a narrow legal determination. That determination has been
rendered. The court will not venture into these factual issues absent a more
fully developed factual record and a mechanism to do so.”
9
“further relief” because she requested attorney fees in her answer to the
complaint. In making this objection Weiss asserted for the first time
that she was entitled to reasonable attorney fees under LARSO, citing
section 151.10.A.6 (She also argued she was entitled to her reasonable
attorney fees under the original attorney fee provision of the lease
agreement.) Along with her objections, Weiss filed the declaration of
her attorney setting forth the amount of fees she had incurred, a total of
more than $71,000.
After considering the parties’ objections, the trial court issued its
final statement of decision. The final statement of decision was a
slightly modified version of the tentative decision. One of the
modifications addressed Weiss’s objection regarding the court’s
statement that it would not grant further relief. The court added a
footnote in which it explained that it edited the objected-to subheading
(which now stated “The court will not grant further declaratory relief”)
“to clarify that nothing about this Statement of Decision makes any
finding with regard to attorney fees, nor does it prevent [Weiss] from
6 Section 151.10.A. provides: “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.”
10
filing a motion for attorney fees.” The court explained it declined to rule
on Weiss’s arguments regarding attorney fees raised in her objections to
the tentative decision because Owner did not have an opportunity to
respond.
Six weeks later, Weiss filed a motion for an award of statutory
damages under section 151.10.A. and attorney fees under both section
151.10.A. and the original attorney fee provision in the lease
agreement; she did not address Owner’s amendment of the attorney fee
provision. Owner opposed the request for statutory damages, arguing
that Weiss waived any such claim by failing to assert it in any prior
pleading or trial brief, and in any event, section 151.10.A. did not apply
under the facts of the case. Owner also opposed the request for attorney
fees on the ground that the amendment to the paragraph 23 of the lease
caps fees at $500, but even if it did not, the requested fees were
unreasonable. In her reply, Weiss argued that Owner’s amendment of
paragraph 23 was invalid under section 151.09 of LARSO because
Owner did not obtain her consent to the change of terms.
The trial court denied Weiss’s request for statutory damages on
the ground that section 151.10.A. was inapplicable under the
circumstances because Weiss never filed a cross-complaint or otherwise
pled a claim for statutory damages. The court observed, “If Tenant
wants statutory damages under LARSO section 151.10.A, Tenant must
seek a trial of that issue so that a developed factual record can be
presented. Tenant may not use a post-trial motion to present factual
issues to the court that need to be tried.” And, because it found that
section 151.10.A. was inapplicable, the court also denied Weiss’s request
11
for attorney fees under that section. Addressing her request for fees
under the lease agreement, the court found that Owner’s amendment of
the attorney fee provision was valid because section 151.09 did not
apply to that amendment,7 and therefore Weiss’s recovery of attorney
fees was limited to $500. On November 20, 2019, the court entered
judgment setting forth its declarations (as stated in the conclusion of
the statement of decision, quoted above) and awarding Weiss $500 in
attorney fees and $709.05 in costs, for a total of $1,209.05.
Weiss timely filed a motion to modify or vacate the judgment, for a
further or new trial, or, in the alternative, to stay entry of judgment
pending further proceedings in the first action. The motion asked the
trial court to revisit its ruling limiting Weiss to $500 in attorney fees
and denying her statutory damages, arguing that a new trial was
warranted on five grounds: (1) there was insufficient evidence to
support the court’s finding that the attorney fee provision of the lease
agreement had properly been amended because (a) the notice of change
of terms that purported to amend the attorney fee provision was not
properly authenticated and (b) the presentation of evidence at trial was
limited; (2) the applicability of the amended attorney fee provision
should be decided in the first lawsuit rather than in the present action;
(3) the trial court lacked jurisdiction to rule on the attorney fee issue
because that issue is pending in the first lawsuit; (4) the trial court
improperly ruled on the applicability of section 150.10.A. without taking
7 Section 151.09 regulates the grounds upon which a landlord may bring
an action to recover possession of a rental unit.
12
evidence, thus depriving Weiss of a fair hearing; and (5) the trial court
made an error in law in determining that the amendment of the
attorney fee provision of the lease was enforceable, because the
amendment was illegal. In support of her motion, Weiss filed a 14-page
declaration in which she recounted the various disputes she has had
with Owner, accompanied by more than 60 pages of exhibits; she also
submitted the declaration of her attorney recounting the conduct of the
first action, which was accompanied by 700 pages of exhibits.
The trial court denied Weiss’s motion. The court rejected Weiss’s
first argument regarding sufficiency of the evidence and the
authentication of the notice of change of terms, observing that “the
parties submitted a joint record and stipulated to the authenticity of all
the documents therein,” including the notice of change of terms, and
that Weiss had not previously raised the issue of authenticity in her
motion for attorney fees. As to the sufficiency of the evidence, the court
noted that it was Weiss who filed the motion for attorney fees, and
there was nothing that prevented her from submitting any evidence she
believed was necessary to establish that the amendment of the attorney
fee provision was illegal or otherwise unenforceable.8 The court stated
that it “considered the evidence that was submitted [on the attorney fee
motion], and that evidence was sufficient to support a finding that the
attorney fee provision modification was legal and enforceable.”
8 For this same reason, the trial court found that Weiss’s fourth
argument—that she was denied a fair hearing because she was not able to
present evidence—to be “patently specious.”
13
Addressing Weiss’s second and third arguments, the trial court
found that the doctrines of judicial estoppel and waiver barred Weiss
from asserting that the enforceability of the amendment to the attorney
fee provision should be determined in the first lawsuit, or that the court
did not have jurisdiction to make that determination due to the
pendency of the first lawsuit. The court stated: “By asking this court to
make a determination about the enforceability of the attorney fee
provision modification, knowing that this issue was raised or could be
raised in Case #1, [Weiss] consented to this court’s determination of the
matter, and [Weiss] waived any future objections she might have had to
such jurisdiction.”
Finally, the trial court concluded that none of Weiss’s arguments
as to why the amendment of attorney fee provision was illegal had any
merit. The court rejected Weiss’s assertion that Owner’s conduct in
issuing the notice of change of terms was unlawful under Civil Code
section 1940.2 because that statute, which makes a landlord’s
harassment of a tenant illegal, did not apply to Owner’s conduct. The
court also rejected Weiss’s assertion that Owner’s unilateral
amendment of the attorney fee provision was against the public policy
underlying LARSO, noting that to the extent LARSO prohibited
properly-noticed unilateral changes of such provisions, it is pre-empted
by Civil Code section 827, subdivision (a), which specifically allows such
changes. The court declined to address Weiss’s assertion that Owner’s
conduct constituted a pretext eviction, finding that Owner had not
attempted to evict Weiss through the amendment to the attorney fee
provision.
14
The court entered its order denying Weiss’s motion on January 14,
2020. Weiss served notice of entry of the order on February 17, 2020,
which attached a file-stamped copy of the order as entered, and filed her
notice of appeal from the judgment (and order denying her motion for a
new trial) the following day.9 Owner filed a notice of cross-appeal from
the judgment two days later, but subsequently dismissed the cross-
appeal.
DISCUSSION
On appeal, Weiss contends the trial court erred by failing to apply
section 151.10.A., the LARSO penalty ordinance, to award her statutory
damages. She also contends the court erred when it limited her
9 Owner filed a motion in this court to dismiss Weiss’s appeal as
untimely, which we denied without comment. Owner reasserts in the
respondent’s brief that the notice of appeal was untimely, arguing that
Weiss’s notice of appeal was filed more than 30 days after Owner served a
“NOTICE OF RULING DENYING DEFENDANT WEISS’ MOTION TO
CHANGE, MODIFY OR VACATE JUDGMENT, ETC.” Attached to the
notice was a copy of the tentative ruling on the motion, which the notice
indicated the trial court adopted as its order. While Owner is correct that
rule 8.108 extends the time to file a notice of appeal from a judgment to 30
days after service of the order denying a motion for a new trial or of a notice
of entry of that order, Owner’s service of the notice of ruling did not start the
30-day clock because it was not entitled “notice of entry” and it did not attach
a copy of the order actually entered as the order of the court. (See Cal. Rules
of Court, rule 8.108; Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393,
399 [serving a notice of ruling of denial of motion to vacate the judgment does
not satisfy rule 8.108, requiring a notice of entry].) Although the court
adopted the tentative ruling as its order, before filing the order the court
corrected the case number that appeared on the tentative ruling and crossed
out the word “TENTATIVE” from its title.
15
attorney fees to $500 because the court’s ruling was based upon an
illegal contract. Finally, she contends the court erred by denying her
motion for a new trial because there was insufficient evidence to justify
the court’s ruling on attorney fees. None of her contentions has merit.
A. Statutory Penalties
Section 151.10.A. provides, in relevant part: “Any person who
demands . . . 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 . . . for
damages of three times the amount by which the payment or payments
demanded . . . exceed the maximum rent or maximum adjusted rent
which could be lawfully demanded . . . together with reasonable
attorneys’ fees and costs as determined by the court.”
Weiss argues that Owner “demanded” payment of increased rent,
which increase the trial court found was unlawful under LARSO.
Therefore, Weiss contends she was entitled as a matter of law to
statutory damages under section 151.10.A. And, because the
declaratory relief action was a “civil action,” she contends the trial court
erred by denying her post-trial request for section 151.10.A. damages.
We have no quarrel with Weiss’s assertion that statutory damages
under section 151.10.A. could be awarded to a defendant in a
declaratory relief action, if appropriate. But the language and
legislative history of section 151.10.A. require that the defendant make
16
a claim for statutory damages in the lawsuit so that the landlord’s
liability (if any) may be determined at trial.
The language in section 151.10.A. that the landlord “shall be
liable in a civil action [to the tenant] . . . for damages,” while somewhat
ambiguous, reasonably can be understood to mean that a tenant may
recover statutory damages only by alleging a claim for damages in a
civil lawsuit. The ambiguity of that language is resolved, however, by
reference to the legislative history of LARSO.
When the first rent stabilization ordinance was passed, it provided
that a landlord who demanded, accepted, received, or retained any
payment of rent in excess of the maximum lawful rent under the
ordinance was guilty of a misdemeanor punishable by a fine of not more
than $500 or by imprisonment in the county jail for up to six months, or
by both. (L.A. Ord. No. 151415, § 4.) That original ordinance expired
by its own terms and was replaced by Ordinance No. 152120, which
added chapter XV—LARSO—to the Municipal Code.
LARSO was drafted by the Los Angeles City Council’s
Government Operations Committee, with input from members of
various divisions, departments, and offices of the City of Los Angeles.
In a report10 presented to the City Council with the committee’s draft of
10 After initially denying Weiss’s request for judicial notice of several
documents she asserted constituted the legislative history of LARSO, we
informed the parties that we were considering taking judicial notice of one of
the documents from Weiss’s request: the Report of Government Operations
Committee to the Council of the City of Los Angeles on proposed Rent
Stabilization Ordinance, presented March 8, 1979. We invited the parties to
submit information relevant to the propriety of taking judicial notice of the
report and the tenor of that report. Both parties submitted briefing on this
17
the proposed ordinance, the committee stated: “A basic problem
confronting the Committee was whether or not to impose criminal
sanctions for violation of the proposed ordinance.” (Report of
Government Operations Committee to the Council of the City of Los
Angeles on proposed Rent Stabilization Ordinance, presented March 8,
1979, p. 2.) The committee explained there was “strong sentiment . . .
to retain, as a deterrent, the misdemeanor provisions of the original
rent regulation concept,” but there were concerns about the projected
costs for additional staff in the City Attorney’s office and for an
investigation unit. (Ibid.) In addition, the City Attorney expressed
reservations about the legality of imposing fees to recover the costs of
investigation and prosecution. However, the City Attorney “informed
the Committee . . . that there is no constitutional requirement that a
violation of a rent regulation measure be made a misdemeanor and that
it could be made a civil offense. In that case, he indicated, a tenant
could be authorized to sue for damages whenever unlawful amounts of
rent were demanded, accepted or received, and to raise such violation as
a defense in an unlawful detainer action brought by a landlord to
recover possession of a unit for failure to pay rent. In view of these
considerations, it was ultimately the decision of the Committee to
eliminate criminal prosecution from the proposal and to provide only
civil remedies.” (Ibid.)
issue and, having considered that briefing, we take judicial notice of the
report.
18
In other words, section 151.10.A. was enacted to authorize a
tenant “to sue for damages” if a landlord demanded, accepted, or
received rent payments in excess of the amount allowed under LARSO.
That is not what Weiss did here. She did not file a cross-complaint
seeking statutory damages under section 151.10.A., nor did she ask for
statutory damages in her trial briefs.11 In fact, she never raised section
151.10.A. until she filed objections to the trial court’s tentative decision
following trial, and even then raised the statute only with regard to
attorney fees. Her first mention of statutory damages under section
151.10.A. came six weeks after the trial court issued its final statement
of decision, when she brought a post-trial motion seeking those damages
and attorney fees.
While Weiss concedes the legislative history demonstrates the
City Council “relied on tenants to file a civil lawsuit to recover”
damages under section 151.10.A., she argues there is no reason to
believe the Council intended that a tenant must file a separate lawsuit
if there is an ongoing lawsuit. She asserts, in effect, that seeking
statutory damages by means of a post-trial motion was appropriate
because section 151.10.A. simply provides a formula to compute the
11 We reject Weiss’s assertion that her prayer for attorney fees and “such
other and further relief as the Court feels is just and proper” was sufficient to
assert a claim for statutory damages under section 151.10.A. First, such a
general “catch-all” request is insufficient to give notice to Owner—let alone
the trial court—that Weiss would seek a determination on the applicability of
a specific statutory damages provision. Second, and more importantly, Code
of Civil Procedure section 431.30, subdivision (c) provides that “[a]ffirmative
relief may not be claimed in the answer.”
19
damages and in this case no trial was necessary since all of the evidence
needed to decide the issue was already part of the trial record. She is
mistaken.
Weiss ignores the fact that a landlord is not liable for damages
unless the landlord “demands, accepts or retains any payment of rent in
excess of the maximum rent” allowed under LARSO. We express no
opinion whether under the facts of this case—Owner’s service on Weiss
of a notice of the increase in rent in accordance with paragraph 6 of the
lease agreement (to take effect in 60 days), immediately followed by
Owner’s filing of a declaratory relief action seeking a declaration that
paragraph 6 was enforceable despite the LARSO—Owner “demanded”
rent in excess of that allowed, or the time period (if any) during which
such a demand was made. But those are critical issues that must be
determined, and Owner was denied an opportunity to present evidence
at trial on those issues because Weiss waited until after the trial was
over to request statutory damages. Therefore, we find the trial court
did not err by denying Weiss’s post-trial motion for statutory damages
under section 151.10.A.
B. Enforceability of Amended Attorney Fee Provision
Weiss argues the trial court erred by finding that Owner’s notice
of change of terms amending the attorney fee provision was enforceable
and capped her recoverable attorney fees at $500, because the
amendment is an illegal contract. She contends the amendment is
illegal for five reasons: (1) it violates Civil Code section 1940.2 because
it is part of scheme by Owner and Owner’s attorney to evict Weiss; (2) it
20
violates the public policy of LARSO because it is a pretext eviction; (3) it
violates the public policy inherent in the covenant of good faith and fair
dealing; (4) it is an unlawful penalty because it amounts to a forfeiture
of the attorney fees she incurred; and (5) it is unconscionable.
Weiss did not make any of these arguments in her motion for
attorney fees, even after Owner cited to the $500 cap in opposition to
the motion. The only argument she raised—in her reply brief—was
that the amendment was invalid under section 151.09, which argument
the trial court correctly rejected. The first three arguments Weiss
makes on appeal she raised for the first time in her motion for a new
trial, arguing (as she does here) that the illegality of a contract may be
raised at any time, even after judgment has been entered. (Citing
Lewis & Queen v. N.M. Ball Sons (1957) 48 Cal.2d 141, 148 (Lewis &
Queen).) The last two arguments are asserted for the first time in this
appeal.
It is arguable that Weiss forfeited the issue of illegality by failing
to raise it in her motion for attorney fees. (See Fomco, Inc. v. Joe
Maggio, Inc. (1961) 55 Cal.2d 162, 166 [finding that none of the decided
cases hold that a court must grant a motion for a new trial on the
ground of new evidence of illegality when judgment had been entered
without the introduction of any evidence of illegality; the Supreme
Court distinguished Lewis & Queen on the basis that “[i]n that case the
issue of illegality was first raised during the trial and not for the first
time on a motion for a new trial”].) We need not answer that question,
however, because we conclude there is no merit to her contentions of
illegality.
21
1. The Amendment Does Not Violate Civil Code Section 1940.2
Civil Code section 1940.2 provides that “[i]t is unlawful for a
landlord to do any of [five specific acts] for the purpose of influencing a
tenant to vacate a dwelling.” (Civ. Code, § 1940.2, subd. (a).) The five
acts are set forth in subdivisions (a)(1) through (a)(5). They are: (1)
engaging in theft in violation of Penal Code section 484, subdivision (a);
(2) engaging in extortion in violation of Penal Code section 518; (3)
using (or threatening to use) force, willful threats, or menacing conduct
constituting a course of conduct that interferes with the tenant’s quiet
enjoyment of the premises that would create an apprehension of harm
in a reasonable person; (4) committing a significant and intentional
violation of Civil Code section 1954 (which limits the circumstances in
which a landlord may enter a tenant’s dwelling); and (5) threatening to
disclose information relating to the immigration status of a tenant or
other person known to be associated with a tenant.
Weiss contends Owner’s amendment of the attorney fee provision
of the lease to impose a cap on fees violated Civil Code section 1940.2
because it was an “integral part of a complex and fraudulent scheme” to
harass and influence Weiss to vacate her apartment. She argues that
the trial court erred by focusing only on Owner’s act of amending the
attorney fee provision when determining whether Civil Code section
1940.2 applied. We disagree.
Weiss misapprehends the scope of Civil Code section 1940.2. The
statute does not make illegal any conduct intended to influence a tenant
to vacate a dwelling. Only conduct that falls within the five acts or
conduct described in subdivisions (a)(1) through (a)5) is unlawful under
22
the statute. And, while subdivision (a)(3), relied upon here by Weiss, is
somewhat broader than the others, it is not as broad as Weiss supposes.
To come within subdivision (a)(3) of Civil Code section 1940.2,12 (1)
a landlord must use force, make willful threats, or engage in menacing
conduct; (2) that use of force, threats, or menacing conduct must
constitute a course of conduct that interferes with the tenant’s quiet
enjoyment of the premises; and (3) that course of conduct must be such
that it would create an apprehension of harm in a reasonable person.
Weiss does not—and cannot—argue that the amendment of the
attorney fee provision, by itself, was a use of force, a threat, or
menacing conduct. Instead, she argues it was part of a “scheme” in
which Owner filed two lawsuits against Weiss after amending the
attorney fee provision and filed numerous motions and appeals in those
case. Weiss asserts this “scheme” was “menacing” because it forced
Weiss to pay significant attorney fees. But even if filing and
aggressively litigating lawsuits could be deemed “menacing conduct”
under Civil Code section 1940.2—which is questionable given Owner’s
constitutional right of petition—the amendment of a month-to-month
lease agreement, in accordance with the terms of the agreement, to limit
the recovery of contractual attorney fees cannot be considered
12 The exact language of subdivision (a)(3) of Civil Code section 1940.2 is
as follows: “Use, or threaten to use, force, willful threats, or menacing
conduct constituting a course of conduct that interferes with the tenant’s
quiet enjoyment of the premises in violation of Section 1927 that would create
an apprehension of harm in a reasonable person. Nothing in this paragraph
requires a tenant to be actually or constructively evicted in order to obtain
relief.”
23
“menacing conduct,” especially when the right to any fees at all is solely
derived from the agreement itself. (See Trope v. Katz (1995) 11 Cal.4th
274, 278 [“California follows what is commonly referred to as the
American rule, which provides that each party to a lawsuit must
ordinarily pay his own attorney fees”]; Code Civ. Proc., § 1021 [“Except
as attorney’s fees are specifically provided for by statute, the measure
and mode of compensation of attorneys and counselors at law is left to
the agreement, express or implied, of the parties”].)
In short, the trial court did not err in concluding that Owner’s
amendment of the attorney fee provision in the lease agreement was not
unlawful under Civil Code section 1940.2.
2. The Amendment Does Not Violate the Public Policy of
LARSO
Weiss contends Owner’s unilateral amendment of the attorney fee
provision is a pretext eviction because it is part of an alleged scheme to
use the legal system to force Weiss to spend so much money on attorney
fees that she will be forced to vacate her apartment. Relying upon
Boston LLC v. Juarez (2016) 245 Cal.App.4th 75 (Boston), she argues
the amended provision is unenforceable because it violates LARSO’s
public policy to prevent pretext evictions. But Boston is inapposite.
In Boston, the lease at issue included a provision stating that the
landlord had the right to forfeit the agreement and terminate the
tenant’s right to possession for any failure by the tenant to comply with
or perform any of the obligations under the lease. (Boston, supra, 245
Cal.App.4th at p. 78.) One of those obligations required the tenant to
24
obtain insurance coverage to protect the tenant for any personal injury
or property damage. The tenant never obtained that insurance, and
after 15 years the landlord served him with a three-day notice to
perform or quit. When the tenant failed to perform within the three
days, the landlord filed an unlawful detainer action. (Ibid.) The
landlord prevailed below, but the appellate court reversed.
The appellate court held that forfeiture of a lease is allowed only
when a tenant’s breach of the lease is material. It found there was no
material breach in the case before it because the required insurance
was to protect only the tenant’s interest, so the tenant’s failure to obtain
insurance could not have harmed the landlord. (Boston, supra, 245
Cal.App.4th at p. 79.) In reaching its holding, the court relied upon a
long line of case law holding that a lease can be terminated only for a
material breach, even if the lease includes a clause that purports to
dispense with the materiality limitation. (Id. at p. 81.) But the court
also examined the materiality requirement in the context of LARSO’s
objectives, which “seek[] to ‘safeguard tenants from excessive rent
increases’ by imposing certain statutory limitations and obligations on
landlords which landlords would otherwise not be subject to under
normal freedom to contract principles.” (Id. at p. 84.) The court noted
as one example of those limitations that “LARSO prohibits landlords
from terminating leases without one of 14 enumerated ‘good causes.’”
(Ibid.) The court found that allowing a landlord to forfeit a lease based
upon a minor or trivial breach under a one-sided forfeiture provision
that entirely benefits the landlord “would allow [the landlord] to
strategically circumvent LARSO’s ‘good cause’ eviction requirements
25
and disguise pretext evictions under the cloak of contract provisions.”
(Id. at p. 85.) It concluded that “LARSO’s public policy goals of
providing stable affordable housing to low-income Angelenos and
preventing pretext evictions outweigh the free market and freedom to
contract principles allowing a landlord to include a unilateral forfeiture
clause in an urban residential rental contract.” (Ibid.)
Boston does not assist Weiss. Unlike the situation in Boston,
where LARSO specifically limited the landlord’s right to do what the
offending lease provision would allow it to do, LARSO does not address
a landlord’s right to include a lease provision that allows, precludes, or
limits the recovery of attorney fees incurred in litigation regarding the
lease. Moreover, the lease provision at issue in this case differs
significantly from the lease provision in Boston because it is not one-
sided. The amended attorney fee provision limits the recoverable
attorneys for both parties.13 Finally, given that landlords are not
required to include any attorney fee provision at all in residential
13 To the extent Weiss contends that the provision of the lease allowing
Owner to amend the terms and conditions of the lease on 30 days written
notice (once the leasehold ended and was converted to a month-to-month
tenancy) is contrary to LARSO public policy, her contention fails. Even if she
could identify a LARSO public policy that precluded such a provision (and she
has not), it would be contrary to state law. (See Civ. Code, § 827, subd. (a)
[“Except as provided in subdivision (b), in all leases of lands or tenements, or
of any interest therein, from week to week, month to month, or other period
less than a month, the landlord may, upon giving notice in writing to the
tenant, in the manner prescribed by Section 1162 of the Code of Civil
Procedure, change the terms of the lease to take effect, . . . as to tenancies
from month to month, . . . at the expiration of not less than 30 days”].)
26
leases, amending an attorney fee provision to limit the amount that
either side may recover cannot be deemed a pretext eviction.
3. The Amendment Does Not Violate the Covenant of Good
Faith and Fair Dealing
Weiss contends Owner’s amendment of the attorney fee provision
violated the covenant of good faith and fair dealing, relying upon Cobb
v. Ironwood Country Club (2015) 233 Cal.App.4th 960 (Cobb) for the
proposition that “the covenant prevents a party from unilaterally
amending a contract to remove existing rights.” Her reliance is
misplaced.
In Cobb, the defendant country club amended its bylaws—after it
had been sued by current and former club members—to add an
arbitration provision, and then moved to compel arbitration of the
members’ lawsuit. (Cobb, supra, 233 Cal.App.4th at p. 962.) Although
the club’s bylaws included a provision allowing the bylaws to be
amended, the appellate court found the amendment at issue could not
be enforced, observing that “[w]hen one party to a contract retains the
unilateral right to amend the agreement governing the parties’
relationship, its exercise of that right is constrained by the covenant of
good faith and fair dealing which precludes amendments that operate
retroactively to impair accrued rights.” (Id. at p. 963.)
That certainly is a correct statement of law, but it has no bearing
on the instant case. The court in Cobb did not conclude that all
unilateral amendments to an agreement that allows amendments by
27
one party necessarily violate the covenant of good faith and fair dealing.
Indeed, the court recognized that “‘the fact that one party reserves the
implied power to terminate or modify a unilateral contract is not fatal
to its enforcement, if the exercise of the power is subject to limitations,
such as fairness and reasonable notice.’” (Cobb, supra, 233 Cal.App.4th
at p. 965.) In this case, there is no question Owner gave Weiss
reasonable notice of the amendment of the attorney fee provision, given
that Owner served the notice of change of terms six months before filing
the first lawsuit against Weiss, and more than a year before filing the
instant lawsuit.
Weiss argues, however, that the amendment was not fair because
“the $500 Cap removed all but $500 of Weiss’s right to attorney’s fees, a
right that was extremely valuable.” Had the amendment applied to
limit only Weiss’s “right” to all of her attorney fees, we might agree that
it was not fair. But the amendment capped both parties’ entitlement to
attorney fees, and it did so before any litigation was filed, i.e., before
either party had incurred any attorney fees in litigation, and thus no
right to reimbursement of those fees had accrued. Therefore, we find
that Owner did not violate the covenant of good faith and fair dealing
by amending the attorney fee provision.
4. The Amendment is Not an Unlawful Penalty
Weiss contends the amended attorney fee provision is an
unenforceable penalty because it results in a forfeiture without regard
to the actual damage suffered. She identifies the “forfeiture” as the
$80,000 in attorney fees she incurred in defending against the instant
28
lawsuit, which the amended attorney fee provision precludes her from
recovering. She asserts that the amended provision provides a windfall
to Owner because without it Weiss would recover from Owner the full
amount of the fees. Therefore, she argues “the $500 cap permits
property to be ‘forfeited without regard to the actual damage suffered.’”
(Citing Ebbert v. Mercantile Trust Co. of California (1931) 213 Cal. 496,
499.) Weiss’s reasoning is faulty.
Simply put, the amended attorney fee provision did not cause
Weiss to “forfeit” any attorney fees, because under the so-called
“American rule” she was required to bear the cost of her own attorney
fees except as provided in the contract. (See Trope v. Katz, supra, 11
Cal.4th at pp. 278-279.) And at the time this lawsuit was filed, the
lease agreement provided that the prevailing party in litigation
regarding the agreement was entitled to recover up to $500 in attorney
fees. The fact that the lease agreement previously did not cap the
recoverable fees does not turn the amended provision into a forfeiture
clause. As discussed, both the lease agreement and state statutory law
allowed Owner to amend the agreement once the leasehold ended and it
became a month-to-month tenancy, as long as proper notice was given
to Weiss. Owner gave proper notice of the change of terms more than a
year before the instant lawsuit was filed. Therefore, the amended
attorney fee provision governed the recovery of attorney fees in this
lawsuit, allowing Weiss to recover up to $500 in fees.
29
5. The Amendment is Not Unconscionable
Weiss contends that paragraph 15 of the lease agreement, which
allowed the unilateral amendment of the attorney fee provision, is
unconscionable because the lease was offered on a take-it-or-leave-it
basis, the terms of paragraph 15 were not highlighted, Owner did not
tell Weiss in advance about the amendment, and the harm inflicted on
Weiss (i.e., not being able to recover more than $80,000 in attorney fees
that she incurred) has “‘shocked the conscience.’”
Weiss’s argument fails for two reasons.
First, paragraph 15 simply mimics statutory law. As noted, Civil
Code section 827 expressly allows landlords to change the terms of any
month-to-month tenancy, as long as the change does not take effect in
fewer than 30 days from when notice is given. Paragraph 15 provides
that after the expiration of the lease period, which is when the
leasehold changes to month-to-month tenancy, the terms and conditions
of the lease would be subject to change by the owner upon 30 days
written notice. A lease provision that merely sets out what state
statutory law provides is not an unconscionable provision.
Second, the “harm” that Weiss asserts is no more (and, in fact,
slightly less given the $500 attorney fee award) than that suffered by a
majority of litigants in California because our Legislature has elected to
follow the “American rule” regarding attorney fees. Thus, unless one of
the exceptions to the rule applies, or the litigants have contracted
otherwise, each party must bear its own attorney fees. While the
amount of attorney fees a party incurs might “shock the conscience,” it
30
does not render a contractual provision limiting the recovery of those
fees unconscionable.
C. Request for New Trial or Stay
Weiss argues that the trial court improperly ruled on the
applicability of the amended attorney fee provision because it admitted
that the factual record was not adequately developed. Therefore, she
requests that this Court reverse the trial court’s ruling on attorney fees
and either order a new trial on the issue or order the matter stayed to
allow the trial court in the first action to address the issue. We decline
to do so. The issue of attorney fees was raised in this lawsuit by Weiss.
It was incumbent upon her to present with her motion for attorney fees
all of her arguments, with the evidence necessary to support them, as to
why the amended attorney fee provision should not apply. She cannot
be heard now to complain that the trial court issued a ruling on her
motion for attorney fees based upon the record she provided for that
motion.
//
//
//
//
//
//
//
31
DISPOSITION
The judgment is affirmed. Respondent 510PacificAve shall
recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
32