All posts by Anthony Marinaccio

Landlord & Tenant Law

Ensure Proper Notice When Filing an Unlawful Detainer

In the case of Long Beach Beach Brethren Manor, Inc. v. Leverett, LLBM appeals the judgment in its unlawful detainer action in favor of the tenant. Landlord contends the judgment should be reversed because the trial court erred in granting Tenant’s motion for summary judgment. Landlord originally filed its unlawful detainer on August 11, 2014, alleging defendant was a tenant, and that he failed to vacate the property after being given a 10-day notice to quit. The attached notice indicated it was served on defendant on July 29, 2014, based on an “incurable breach” of the United States Department of Housing and Urban Development (HUD) rental agreement. The notice required Tenant “to refrain from disturbing the rights and comforts of other tenants.”

The notice stated that the Tenant breached the portion of the agreement by hitting another tenant on the shoulder three times, and by engaging in a physical altercation with a different tenant. The complaint for unlawful detainer requested possession of the property, forfeiture of the rental agreement, and damages. Tenant filed an answer on August 13, 2014, generally denying the allegations with some affirmative defenses.

Tenant then filed a motion for summary judgment, which stated that there was no triable issue of material fact regarding whether the notice to quit gave Tenant enough notice. Tenant argued the agreement should be interpreted to require 30 days’ notice to quit, and since only 10 days of notice were provided, Landlord’s unlawful detainer action was premature and fatally defective because of the inadequate notice.

The initial one-year lease had expired, and the agreement had been renewed for successive one-month terms there afterwards. Tenant used paragraph 9(b)(1) of the Lease, which stated that the landlord may end the agreement effective at the end of any successive term, “based upon either material noncompliance with this Agreement, material failure to carry out obligations under any State landlord or tenant act, or other good cause. When termination of the tenancy is based on other good cause, the termination notice shall so state, at the end of a term and in accordance with the termination provisions of this Agreement, but in no case earlier than 30 days after receipt by the TENANT of the notice. Where the termination notice is based on material noncompliance with this Agreement or material failure to carry out obligations under a State landlord or tenant act, the time of service shall be in accordance with the previous sentence or State law, whichever is later.”

Defendant brought forth the basis for the termination was defendant’s alleged noncompliance with the section of the agreement. Defendant was thus entitled to 30 days of notice, because this amount of time provided for more time for termination than was set forth by State law, which is only 3 days of notice. Plaintiff filed an opposition to this, contending the motion should not be allowed due to the agreement being interpreted as requiring only the notice required by State law of 3 days of notice.

The court then granted the defendant’s summary judgment motion because it had determined there was no triable issue of fact with respect to the 30 days of notice being required under the agreement. The court rendered judgment in defendant’s favor. Court of Appeals also affirmed the judgment.

This case is important for landlords to note that they should comply with whatever the terms of the lease agreement allow. The terms of the lease agreement can sometimes even supersede State law, so it is important to review prior to serving any notices on tenants.

Estate Planning

Issues with Siblings in Estate Planning

The Wall Street Journal recently had an article entitled “Sibling Rivalry Complicates Estate Planning.” I find that this issue often comes up in estate planning and other matters. The article highlights a dispute over the estate of Jimi Hendrix. When Jimi Hendrix died in 1970, he did not leave a will. His estate had been controlled by his father. When his father died in 2002, a sibling of Jimi Hendrix was put in charge of his estate. In response another sibling disputed the new executor.

The article provides some interesting insight into planning for a dispute among siblings. First, there should not be surprises. If you intend to treat children unequally, a no contest clause may address your needs, although it needs to be written properly. Further, the person who wants to contest a will or trust must have received a sufficient inheritance in order for the beneficiary to decide it is not worth contesting a will or trust. Often times disparate treatment among siblings is a major reason for fights after a parent’s death.

Second, if you do have valuable or sentimental items that you believe your  children will fight over, then it may be worth addressing these issues in your will. California law allows you to handwrite a list of personal property and the persons you want to receive it as part of your will. I will be discussing that issue in a future post.

Sibling disputes can tear apart a family, so efficient estate planning can often avoid these disputes and allow for family unity after a parent’s death. It is important for a person contemplating a will or trust to consider sibling disputes in their estate plan.

Landlord & Tenant Law

Short Term Rentals in the Los Angeles Market

Curbed LA has an interesting article regarding the number of rental units being taken off the market in order to feed the demand of short term rentals. The article is “Short Term Rentals Are Taking 11 Units off the LA Rental Market Every Day”

The article provides lots of statistics and research into the number of units being removed and the neighborhoods that are most affected, generally Venice, Hollywood, Santa Monica, West Hollywood, and Silverlake. There is a push for the Los Angeles City Council to address short term rentals as they affect many L.A. neighborhoods. The issue has not been addressed yet by the City Council. Currently, short term rentals are in a limbo area of the law as they are being run nearly as hotels in residential neighborhoods. Further, there may be Los Angeles rent control issues if a tenant stays there for more than 30 days. I use the word tenant because any time a person rents out space in real estate, the other person is a tenant — no matter how short it is.

It is important to note the one area that is not gray is a tenant who operates a short term rental in their unit. Under nearly any lease I have ever seen, this would be considered illegal subletting and would be cause for an eviction under the Los Angeles Rent Stabilization Ordinance. Prior to operating a short term rental, a tenant should receive the permission of their landlord.

Estate Planning

Selecting the Right Trustee

A typical misconception about estate planning is that people who are considered older should be concerned with them and that there is always time to go and create a will or trust. The problem with that thought process is that estate plans are much more than the passing of assets to another person. Estate plans can include the power to make decisions for a person regarding health concerns if said person is incapacitated or is unable voice the decision themselves. This is typically an overlooked aspect of estate planning and actually is a very important one in the case of a car accident or maybe a work related injury. Some may argue that one can go make the health care power of attorney if something was to happen, but may forget that if a person is incapacitated they will not be able to create this document. In addition, if an emergency is to occur, it is normal to be in a frazzled state and not think things through clearly before making important documents. Because of these mentioned reasons, it is a very important decision to set up a very precise health care power of attorney and make sure that your health and life is protected in case of an emergency.

The other side of estate planning that younger individuals do not typically think about are wills and trusts to protect the assets that they have. Homes, bank accounts, automobiles, burial expenses are the items people correlate to wills and trusts, but social media accounts and smaller personal belongings is what is left out of that thought process. They may seem minuscule and unimportant, but should be taken care of to make sure that they go into the correct hands. Everything of slight importance could be and should be mentioned in a will so that nothing is left to chance. Also, younger people without a great deal of assets tend to believe that their assets will always be placed in the hands of their spouse or maybe parents, which ends up not being true. It is always beneficial to have a will or trust set up, even for a small amount of assets, so that the assets are distributed to the correct people and survivors do not have to go through a tedious process which occurs when there is no estate plan. In addition, assets that have been obtained after the will or trust has been established can always be added to the documents, so that they are protected as well.

A very important aspect of estate planning that usually is not mentioned in articles is the actual picking of the trustee and how to make sure you have chosen the correct person. The questions that should be asked to picking a trustee are as follows:

–         Does he or she have the experience and knowledge to manage complicated financial affairs in a competent and knowledgeable manner?

–         If he or she must make a decision that may affect family members, will they act in a fair and unbiased manner?

–         Will naming a family member as trustee create tension between family members?

–         Does the prospective trustee have the time to manage your trust and will do so without rushing?

–         Does he or she want this important responsibility?

–         Is there another person in mind to serve as trustee if the trustee selected can’t do it?

These questions should be thought about with the uttermost care and should be discussed with a third party to get a second opinion on the potential choice of the trustee. An attorney could help make the correct choice of a trustee because they would be unbiased. Please contact attorney Anthony Marinaccio at 818-839-5220 with any questions.

Estate Planning

21st Century Estate Planning

I ran across an interesting article addressing estate planning for “modern families,” including “blended families,” same sex marriages, and multi-generational families.

Many of these families could benefit from traditional estate planning in the sense that they should speak to an attorney who can address some of their concerns. However, the first step for anyone wishing to begin on their estate plan should be to know and understand what the would like to do. For example, in a blended family, it is important to discuss what assets should go to which children and how to address children from prior marriages with a current spouse.

The recent U.S. Supreme Court case on same sex marriage has for the time being ensured that married same-sex couples are treated the same as heterosexual married couples. However, the important distinction is still “married.” Generally, a couple must be married in order to fully benefit from California community property. Otherwise, a long term partner may not have the same rights as a spouse. Also similar to heterosexual couples without children, couples in same sex marriages without children should consider who their estate should go to (if you do nothing, laws of intestacy will apply).

Many of these issues are modern twists to traditional estate planning but can be addressed in similar ways. The first step is to visit an attorney to discuss your concerns and how to adequately protect your interests.

The article is “Modern Families’ Unaddressed Estate Planning Challenges.”

Estate Planning

Estate Planning is Not Just About Estate Taxes

MSNBC recently wrote about the wealthy not creating estate plans because many of their estates fall under the estate tax exemption. In 2015, the estate tax exemption is $5,430,000 per person (meaning $10,860,000 per couple). Prior to the 2000s, estate planning was focused on estate taxes; however, with the higher exemption limits, most families will not have to deal with estate taxes at all.

Estate planning is more importantly a method to control what you want to do with your assets when you’re alive and unable to make decisions and when you’re deceased. It allows you to pass property to the people you want. If you do nothing, your “estate” will be decided by a set of California laws, known as dying intestate or intestacy. This might not be what you want. Further, if you do nothing, your estate may need to go to probate, which is a court process to pass assets to your closest living relatives. The costs associated with probate can be high.

Part of any estate plan is to include a revocable living trust and will to avoid probate. Further, an estate plan includes a power of attorney and advance healthcare directive to address issues while you are alive and unable to make decisions. These important documents are not just to minimize estate taxes, but allow certainty and minimize costs associated with passing property to your heirs.

The article is “Wealthy suffer from ‘estate planning fatigue.'”

Landlord & Tenant Law

Ellis Act Evictions in Beverly Grove

NBC recently featured a story about 18 families being evicted under the Ellis Act from their apartments in order for the owner to build an eleven town homes. The story is Beverly Grove Residents Face Eviction.

The Ellis Act is increasingly being used in Los Angeles to make way for new developments. The Ellis Act is used by developers and landlords to demolish existing apartment units in order to develop new condominiums or homes. Under the Los Angeles Rent Stabilization Ordinance, a tenant is allowed to receive relocation assistance after receiving a 90 Day Notice to Quit.

If a tenant is not out after 90 days, a landlord is within his rights to file an unlawful detainer and evict the tenant. However, disabled persons and the elderly are allowed to extend their tenancies for up to one year as long as they provide notice of the extension under the Los Angeles Rent Stabilization and continue to pay rent.

If you have questions regarding the Ellis Act, please contact Attorney Anthony Marinaccio at 818-839-5220.

Landlord & Tenant Law

Costa Mesa’s Ordinance Regulating Sober Living Homes Upheld

Recently, a Federal Judge found that the City of Costa Mesa’s ordinance that regulated sober living homes did not discriminate against recovering alcohol and drug abusers. The case Solid LandPartings Behavioral Health, Inc. v. City of Costa Mesa has important implications for sober living home operators looking to oppose City ordinances that regulate sober living homes.

In October 2014, the City of Costa Mesa enacted Ordinance No. 14-13. The Ordinance essentially prohibits the operation of large boarding houses in properties within the R1 zoning designation. The Ordinance has subsections addressing group homes, residential care facilities, and sober living homes.

Sober living homes had proliferated in Costa Mesa and hence the Ordinance was passed to try and regulate sober living homes. The Ordinance requires a sober living home to apply for a special permit within 90 days after the Ordinance was enacted and allows for a year for the sober living homes to comply with the provisions of the Ordinance. ‘

Procedural History

The multiple Plaintiffs in this case are owners and operators of several residential drug and alcohol rehabilitation homes in Costa Mesa. Plaintiff Doe is an owner, operator and/or employee of Solid Landings who is required to provide private, personal information pursuant to the Ordinance and the permit application. In response, Plaintiff Doe filed a Complaint for declaratory relief in Federal Court on November 18, 2014, asserting that the Ordinance is preempted by federal law and violated the Fair Housing Amendments Act, the Americans with Disabilities Act, and the Fourteenth Amendment to the United States Constitution.

The Complaint was dismissed in early 2015 and thereafter the Plaintiffs argued that the Ordinance requirements that required disclosure of personal information were discriminatory, the Ordinance’s requirement that a sober living home be separated by 650 feet is humiliating and discriminatory, and that the concerns about the neighborhoods are not backed up by concrete data.

Legal Standard

The legal standard that is to be applied in this case is as follows: A plaintiff must state “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility” if the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009).

In regards to the Federal Fair Housing Amendments Act and Americans with Disabilities Act claims, the Court stated that recovering alcohol and drug abusers admitted into sober living homes are disabled. In order for a plaintiff to state a claim for a violation of the FHAA or ADA, a plaintiff must show (1) disparate treatment, (2) disparate impact, or (3) failure to provide reasonable accommodation.

Disparate Treatment

In regards to the disparate treatment, what is needed to be proven is as follows: (1) “the restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes.”Cmty. House, Inc. v. City of Boise 490 F.3d 1041, 1050 (9th Cir. 2006). Although the Ordinance treats sober living homes different from other living arrangements, the Court found that the Ordinance actually provides alternative housing for disabled persons that would not be allowed for non-disabled persons. Thus, the Court found that the “disparate treatment” was actually beneficial to recovering alcohol and drug abusers.

Disparate Impact

In regards to the disparate impact, Plaintiffs acknowledge that they do not state a disparate impact claim.

Reasonable Accommodations

With regards to the failure to provide reasonable accommodation, the Court failed to see how the 650-foot separation rule is facially unreasonable, and Plaintiffs’ allegation that the City does not intend to grant relief from the rule does not affect the Court’s facial analysis because Plaintiffs had not yet made a request for a reasonable accommodation prior to filing the lawsuit.

This is an important issue for any plaintiff to understand because a Court cannot make a determination on an issue until it is “ripe.” Plaintiffs had not yet sought a reasonable accommodation under the Ordinance, so it is unknown how the City of Costa Mesa would respond to such a request.

Equal Protection Rights

“To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Since the fact that individuals with disabilities are not a suspect class under Section 1983, the Ordinance is then subject to review “limited to determining whether the law is rationally related to legitimate legislative goals.

Concluding Remarks

In sum, the Court found that Plaintiffs had not yet made a valid cause of action for discrimination under the FHA or ADA. Please contact Attorney Anthony Marinaccio at 818-839-5220 if you have any questions regarding sober living home regulation.

Real Estate

Court Determines Applicable Statute of Limitations for Quiet Title Action

Plaintiffs owned a commercial property and have used it for their own businesses and also have had tenants that have paid them rent. In January of 2005 a deed of trust,  and absolute assignment of rents which were signed in December of 2004, were recorded in the Kern County Recorders office. The deed of trust listed two parcels of real estate as collateral; the Brundage Property which is the property in question and another parcel located on California Avenue in Bakersfield.

The debt secured by the deed of trust was executed as a promissory note dated December 13, 2004 for $350,000 which was for the purchase of the California Avenue Property. Both documents were made by the Plaintiffs, but the Plaintiffs alleged that the names and signatures on the forms were forged, and Mr. Salazar believed the forging to have been done by their son Jaime Salazar.

Trial Court Decision

This appeal action brings up the question of if an application of the statute of limitations to a quiet title action that attempts to have a deed of trust declared void as a forgery would be correct. The trial court granted a summary judgment for the defendant beneficiaries for asserting the affirmative defenses of the statute of limitations, waiver of the forgery claim, unclean hands, ratification, and laches. It was granted on the three-year limitations period in Code of Civil Procedure section 338(d) but did not cover the affirmative defenses. The trial court came to the conclusion that the notices of default sent by lender to the plaintiffs in 2005 began the statute of limitations period and the limitations period had expired three years after and this was much before the quiet title action had been filed in early 2012.

Appeal Decision

On the appeal, the Plaintiffs rely on the rule that a statute of limitations does not bar an action to quiet title by an owner in undisturbed possession of their land and that basically, the fact that the deed of trust documents had forged signatures on them and that the notices of default basically relied on these forged documents which was the make them invalid. The notices of default under an invalid or forged deed of trust provide notice of a cloud on the plaintiffs’ property  title, but did not dispute or disturb the plaintiffs’ possession of the property and hence the statute of limitations does not bar their quiet title action. Secondly, in regards to the affirmative defenses of waiver, unclean hands, ratification, and laches, the separate statements for each defense do not set forth all of the material facts necessary and hence fail. In conclusion the trial courts decision was reversed.

This case raises important issues when determining statute of limitations. A statute of limitations provides the time frame for a person to bring an action. Once the statute of limitations expires, the person cannot file an action against another even if there is liability. Please contact Attorney Anthony Marinaccio at 818-839-5220 for more information.

Real Estate

Why Tenancy In Common Agreements Should be Specific

Agreements must be drafted specifically and if they are not, relief cannot be granted in the manner that the parties thought should have occurred. In Leg Investments v. Boxler, the California Court of Appeals found that a tenancy in common agreement should have been specific 

In 1976 Carl and Judith Bumpass and the Boxler family purchased the lakefront property at 4960 North Lake Boulevard, Carnelian Bay, California with an undivided interest of 50% to each couple. In 1993, the Bumpass couple transferred their 50% interest to the Schwerdtfeger couple and five years later LEG Investments purchased their fifty percent share.

The Tenancy in Common Agreement

In 1993, when the Bumpass couple transferred their interest to the Schwerdtfeger couple, the Schwerdtfegers and the Boxlers entered into the Tenancy in Common (“TIC”) agreement “to establish their rights and duties with respect to each other as tenants in common.” In the TIC Agreement there were sections spelling out the specifics of the tenancy. “If and when either Owner decides to sell their Interest in the Property and that Owner receives a bona fide offer for its purchase from any other person or entity, the other Owner shall have the first right of refusal to purchase the selling Owner’s Interest in the Property for the price and on the terms provided for in such bona fide offer” was established in the TIC Agreement and also if the issue arose that the right was refused, “ the selling Owner may enter into an agreement to sell the Interest to the offeror at the price and under terms no less favorable than those set forth in the notice of offer given to the other Owner.” The term of the agreement was thirty years, with five year extensions until termination of the agreement was agreed upon by both parties. Also an integral part of the agreement was that it said that it was to be binding upon and inure to the benefit of the parties hereto, their heirs, devisees, transferees, executors, administrators, successors, assigns, and all other persons hereafter holding an Interest in the Property. Also, the covenants herein shall be deemed to run with the land. Basically this ties the agreement to the land and not only to the signing parties.

Dispute

LEG Investments, represented by Eppie Johnson, who is a general partner, stated that problems arose between the two parties as soon as LEG Investments purchased. LEG tried to sell their share to the Boxler couple, but the Boxler couple refused. There was also an instance where a buyer had come forth to purchase the share owned by LEG Investments, but the buyer did not approve of the Boxler’s as co-owners because of their lack of wanting to contribute to repairs to the property.

In May of 2006, LEG Investments filed for a complaint to have a partition by sale, which allows a property owned by partners to be sold and proceeds from the sale to  be divided among co-owners when a property cannot be physically separated. LEG Investments had filed the complaint because in March 2006 when they had asked the Boxlers to list the property or to buy the interest owned by LEG Investments.

The trial court determined the right of first refusal in the tenancy in common agreement waived the right to partition because the sale of partition would be unfair to the Boxler couple. The court denied LEG’s motion for summary judgment or summary adjudication on the right to partition due to them being able to purchase the interest at a lower than market price, and granted the Boxlers’ motion for summary adjudication on the affirmative defenses of express and implied waiver. The cause of action in their cross-complaint for a judicial declaration that the owners of the property had waived the right to partition was also granted and they received $86,955. LEG Investments appealed the decision thereafter.

Appeal

The appeal brought by LEG Investments was based on their contending the trial court made a mistake in granting summary adjudication as to the affirmative defenses of waiver. LEG contends the right of first refusal in the Tenancy in Common Agreement is not an absolute waiver of the right to partition, but requires only that the selling cotenant first comply with the right of first refusal by offering its interest to the other cotenant before seeking partition. LEG Investments states that they had complied with all the requirements necessary. LEG also contends the trial court made a mistake in denying summary adjudication on its cause of action for partition. Lastly, LEG contends the award of attorney fees must be reversed because there was a section in the agreement that stated, “any action between the parties seeking enforcement or interpretation of any of the terms and conditions of this Agreement” shall be awarded court costs and reasonable attorney fees.

The court of appeals finds that the right of first refusal in the Tenancy in Common Agreement modifies the statutory right to partition, but does not permanently waive it. Since the Boxlers refused the offered right of first refusal, LEG Investments may proceed with the partition action. Also because the offer of Gibb was deemed a real bona fide offer, the Boxlers failed to dispute LEG’s undisputed fact that the Boxlers declined to exercise their right of first refusal on the bona fide offer. LEG set forth this fact in its separate statement of undisputed facts in support of its motion for summary judgment or summary adjudication.

The judgment was that the awarding of attorney’s fees to the Boxlers was reversed, the trial court was directed to to vacate its orders granting the Boxlers’ motion for summary adjudication and denying LEG’s motion for summary adjudication, to enter a new order granting LEG’s motion for summary adjudication on its first cause of action for partition by sale, and to deny the Boxlers’ motion for summary adjudication on that cause of action and on its first cause of action in its cross-complaint for declaratory relief, and to enter an interlocutory judgment directing partition of the Property by sale. LEG Investments shall also recover its costs on appeal.

Conclusion

This case is important to demonstrate that an agreement should be properly drafted to reflect the intention of the parties. Although the type of agreement for partners who own real estate together is recommended, the terms must be specific to the parties’ desires. Please give Anthony a call at 818-839-5229 for more information.