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Abco, LLC v. Fred Eversley

February 14, 2013

ABCO, LLC, PLAINTIFF AND APPELLANT,
v.
FRED EVERSLEY, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dunn, Judge. (Los Angeles County Super. Ct. No. SC112778)

The opinion of the court was delivered by: Turner, P. J.

CERTIFIED FOR PUBLICATION

Affirmed.

I. INTRODUCTION

Plaintiff, ABCO, LLC, appeals from a summary judgment entered in favor of defendant, Fred Eversley, on an unlawful detainer complaint. The unlawful detainer complaint was filed after defendant, a tenant, refused to pay rental increases for premises located on Abbott Kinney Boulevard in the City of Los Angeles (the city). Defendant argued plaintiff's rental increases violated the Los Angeles Rent Stabilization Ordinance (Los Angeles Mun. Code § 151.00 et seq.)*fn1 (the ordinance) and no exemption for one family dwellings applied. The trial court ruled plaintiff violated section 151.04(A) raising defendant's rent in excess of section 151.07(A)6. The trial court rejected plaintiff's contention that the Abbott Kinney Boulevard property was exempt from the ordinance because it was a one family dwelling within the meaning of section 12.03. We affirm.

II. FACTUAL AND PROCEDURAL HISTORY

On May 27, 2011, plaintiff filed an unlawful detainer complaint against defendant for five largely unpaid monthly rental installments due at $9,900 per month. The notice to pay rent or quit dated May 9, 2011, sought rent from January 1 through May 1, 2011. The three-day notice to pay rent or quit indicates defendant paid $20,000 to plaintiff in March, 2011. Defendant filed a general denial which included 23 affirmative defenses. The twenty-third affirmative defense alleges the property is not registered with the Los Angeles Housing Department and the rent increase exceeded that permissible by law. (§§151.05, 151.09(E)-(F), 151.11.)

In support of the summary judgment motion, defendant's declaration established the following. Defendant has lived at 1100 Abbott Kinney Boulevard in Los Angeles since 1969. The property had previously been listed on the city records with an address of 1110 Washington Boulevard. The occupancy certificate, dated March 27, 1969, describes the property as a "Dwelling & Store." Until the middle of 2011, according to defendant, other people lived in other portions of the building which were separate units. Although each unit used a separate mailing address, all of the apartments were part of the same building. The other units were separated by wood and plaster walls. The units were not detached from defendant's apartment. There were between 8 to 10 people living in the building at various times. The building owner saw the other persons and rented the building as dwellings. The apartments used addresses of 1112, 1114 and 1116 Abbott Kenny or Washington Boulevards. For years, there had been only one water meter and defendant paid half of the water bill.

Defendant has always used the property as a work space and residence. In one portion of the property he rented, defendant ate, slept and bathed. When he moved into the property, it contained a bedroom, a bathroom with shower and tub and a full kitchen. The kitchen included a stove, refrigerator, sink and wall of countertops and cabinets. In the past 40 years, defendant replaced the appliances and installed a new sink. In the other portion of the property he rented, defendant worked as a sculptor. The work space makes up between 40 and 45 per cent of the part of the building defendant rents. Defendant attached a photograph of the living area to his declaration. The work area and the residence are all in the building.

Defendant had entered into several long-term leases with plaintiff. The first lease, dated March 10, 1976, described the premises as, "Art Studio and Gallery and Place of Residence." When the lease was renewed on February 15, 1986, the description of the premises was the same. When the lease was renewed on August 19, 1987, it stated that, apart from the term of the agreement and the rent, all of the other causes and conditions of the original release were to remain unchanged. In August, 2006, the lease was extended "under the same terms and conditions" for a new term and specified rental increases.

When the lease term ended on August 31, 2007, defendant was paying $4,800 per month in rent. In the first year of the extension, defendant's rent was increased to $9,000 per month. The first extension lasted from September 1, 2007, to August 31, 2008. Then, defendant's rent was increased to $9,900 per month. Defendant had never registered plaintiff's unit with the housing department.

Plaintiff filed the declaration of H. William Hall in opposition to defendant's summary judgment motion. In part, Mr. Hall's declaration is contradictory. At one point he states, "At all times [the] building was used a commercial building for business purposes only." Then in the next sentence, Mr. Hall declares that defendant obtained an occupancy permit. The purpose of the occupancy permit was to allow defendant to use the premises as both a business and residence. According to Mr. Hall, the occupancy permit only affected defendant's premises and no other portion of the building. Mr. Hall declared: none of the other units have been used as residences; no permits have been issued to install kitchens or bedrooms in any other unit other than the one belonging to defendant; and he is aware that there is running water in all of the units. Mr. Hall had inquired of an unidentified housing department staffer as to whether the building at issue fell under its jurisdiction. According to Mr. Hall, he was told that a "multi-unit commercial building with only one dwelling" does not fall under the ordinance. In addition, Mr. Hall declared: "I was also advised that if an occupant thought his unit falls under [the ordinance] he could file a Complaint and an official investigation would take place. No Complaint has been filed and no investigation has occurred."

On October 11, 2011, defendant's summary judgment motion was granted. On October 11, 2011, the trial court issued a written ruling. The written ruling states section 12.03 defines a "dwelling unit" as a suite of two or more rooms which are occupied by a family for living and sleeping purposes. Further, the trial court concluded that section 151.05.(A)1 requires a rental unit be registered with the housing department. The trial court rejected plaintiff's argument that defendant's rental unit was a single-family dwelling as that term is used in section 12.03. The trial court reasoned defendant's residence was not a detached dwelling containing only a single dwelling unit. In its October 18, 2011 written order granting's defendant's summary judgment motion, the trial court ruled his residence was not a ...


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