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Dromy v. Lukovsky

California Court of Appeals, Second District, Third Division

August 30, 2013

DAVID DROMY, Plaintiff and Respondent,
v.
MARINA LUKOVSKY, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC472802, Ruth Ann Kwan, Judge.

Sonya Bekoff Molho for Defendant and Appellant.

Simkin & Associates, Inc., Michael J. Simkin; Cole & Loeterman, and Dana M. Cole for Plaintiff and Respondent.

KITCHING, J.

INTRODUCTION

Civil Code section 1954, subdivision (b)[1] permits a landlord to enter a dwelling unit to exhibit the premises to prospective or actual purchasers during “normal business hours.” In this case of first impression, we discuss the meaning and scope of the phrase “normal business hours” as it applies to the facts of the pending dispute.

Plaintiff and respondent David Dromy leased a condominium to defendant and appellant Marina Lukovsky. Dromy wishes to sell the property. The trial court issued a declaratory judgment permitting Dromy to hold open houses, under certain conditions, on weekend days between 1:00 p.m. and 4:30 p.m. Lukovsky contends that the declaratory judgment violates section 1954. We reject her arguments and affirm the judgment.

FACTS

Dromy owns a residential condominium in Santa Monica. Under a lease she entered with Dromy’s predecessor in interest, Lukovsky has been a tenant of the property since 1994. The property is subject to the Santa Monica rent control regulatory scheme, which places restrictions on a landlord’s ability to evict a tenant. (Santa Monica Charter, art. XVIII, § 1806; Santa Monica Mun. Code, § 9000 et seq.)

In approximately 2010, Dromy entered into a listing agreement for the sale of the property with Dafna Milstein, a licensed real estate agent. Although Lukovsky has allowed Milstein to privately show the property to prospective purchasers by appointment, she has refused to permit open houses on weekends.

Frustrated by what he perceived to be an undue barrier to his ability to sell the property, Dromy filed a complaint for declaratory relief against Lukovsky. In the complaint, Dromy sought a declaration regarding his rights and duties under section 1954 to enter the property for the purpose of exhibiting it to prospective purchasers.

Shortly after he commenced the action, Dromy filed a motion for summary judgment. In a declaration supporting the motion, Milstein stated: “In my professional opinion, Ms. Lukovsky’s refusal to permit weekend open house showings at the subject property has made it much more difficult to find a prospective purchaser. The custom and practice in the residential real estate community is to conduct weekend open houses in order to market properties more effectively and expose listed properties to the general public.” Lukovsky conceded that California real estate agents customarily hold open houses on weekends.

At the hearing on the motion, the court announced it was ruling in Dromy’s favor. The court also indicated it needed to fashion a judgment regarding Dromy’s ability to enter the property that was fair and reasonable to both sides. Lukovsky’s counsel requested that any judgment include safeguards against the landlord’s excessive intrusion of Lukovsky’s right to quiet enjoyment. For example, Lukovsky claimed that during one showing of the property, some of her possessions were “disturbed” when she was not present. Lukovsky’s counsel thus requested that the court require Dromy to have a licensed real estate agent present during open houses.

After the hearing, the court entered a lengthy and thoughtful order granting the motion. The court concluded that as a matter of law, section 1954 “permits landlords to hold open ...


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