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LLC v. Atunez

Superior Court of California, Appellate Division, Los Angeles

July 5, 2013

NIVO 1 LLC, Plaintiff and Respondent,
v.
AMITERIA ANTUNEZ, Defendant and Appellant

APPEAL from a judgment of the Superior Court of the Los Angeles County, Central Trial Court, No. 12U06657 Rafael A. Ongkeko, Judge.

Allen R. King for Plaintiff and Appellant.

Sonia Servin and Carol Kim for Defendant and Respondent.

WE CONCUR. KUMAR, ACTING P. J., RICCIARDULLI, J.

OPINION

KEOSIAN, Judge.

Plaintiff and landlord NIVO 1 LLC appeals the judgment entered in favor of defendant and tenant Amiteria Antunez.

BACKGROUND

On May 29, 2012, plaintiff filed a complaint against defendant Amiteria Antunez seeking past due rent and possession of the property located at 2015 ½ Echo Park Avenue in

Los Angeles.[1] Plaintiff alleged that on a date unknown, defendant and plaintiff’s agent entered into a month-to-month written agreement wherein defendant agreed to pay $608 per month, that the tenancy was subject to the City of Los Angeles Rent Stabilization Ordinance (LARSO), and that defendant was personally served with the 3-day notice to pay rent or quit and a 3-day notice to perform covenants or quit on May 17, 2012.

The 3-day notice to perform stated, “Further, you [sic] in violation of paragraph 17 of your lease agreement—you have failed to maintain a personal property insurance policy.” Paragraph 17 of the Residential Lease Agreement provides: “INSURANCE: TENANT must maintain a personal property insurance policy to cover any losses sustained to Tenant’s personal property or vehicle. It is acknowledged that LANDORD does not maintain this insurance to cover personal property damage or loss caused by fire, theft, rain, water overflow/leakage, acts of GOD, and/or any other causes... TENANT’S failure to maintain said policy shall be a complete waiver of TENANT’S right to seek damages against LANDLORD....”

On June 4, 2012, defendant filed an answer asserting various affirmative defenses. The matter came for court trial on July 6, 2012. Pursuant to Evidence Code section 776, defendant testified that she moved into the premises in 1998 and did not have renter’s insurance at that time. Defendant did not obtain renter’s insurance after service of the notice to perform covenant or quit. Ann Swain, the property supervisor, testified that on June 23, 2011, she posted and mailed to defendant a notice of change of terms of tenancy. She further testified that defendant failed to comply with the notice and did not obtain renter’s insurance.

The court found that defendant’s failure to procure and maintain personal property insurance was not a material breach, and as such, could not support a forfeiture of the lease. Judgment was entered for defendants. Plaintiff filed this timely appeal.

DISCUSSION

The Notice of Change of Terms of ...


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