Superior Court of California, Appellate Division, Fresno
from a judgment of the Superior Court of Fresno County, No.
16CECL00668 Dale Ikeda, Judge. Reversed.
Segura, Central California Legal Services, Inc., attorney for
defendant/appellant Gabriela Llamas.
Michael J. Lampe, the Law Offices of Michael J. Lampe,
attorney for plaintiff/respondent The CMB Group, Inc.
Donald S. Black, Presiding Judge.
appeal, defendant/appellant Gabriela Llamas (hereinafter
“appellant”) challenges an unlawful detainer
judgment in favor of plaintiff/respondent The CBM Group, Inc.
(hereinafter “respondent”). The judgment was
based on appellant's failure to pay full market rate rent
after she failed to complete paperwork to recertify her
application for federal subsidized housing through the Rural
Development Program, and also on her alleged drug use and
involvement in criminal activities on the property. Appellant
contends that the 60-day notice served on her was
insufficient to support the judgment because it did not
mention any alleged drug use or criminal activity and gave
her no opportunity to cure the alleged violations. She also
contends that there was no substantial evidence to support
the judgment to the extent that it relied on the three-day
notice because respondent refused to allow her to complete
the recertification process to qualify for the federal
subsidy program. We agree that the judgment was not supported
by either the 60-day notice or the three-day notice, and
therefore we will reverse the judgment.
entered into a lease agreement with respondent in November of
2012 to rent an apartment in Kerman. The rent was $766 per
month, but appellant was only required to pay $25 per month
because she qualified for subsidies under the United States
Department of Agriculture's Rural Development Program. In
order to remain in the program, appellant had to recertify
her income and household size annually. This required her to
meet with the property manager, sign forms, and fill out a
questionnaire. The recertification had to be completed before
the current certification expired. In appellant's case,
this required her to complete the recertification on or
before December 31, as her certification expired on January
1. In addition, there was a ten-day grace period, so
effectively appellant could complete her paperwork as late as
respondent has a policy and practice of sending out several
notices to tenants before their certifications expire.
Respondent sends a notice 120 days in advance of the
expiration date, another notice at 90 days, and a notice at
60 days. The notices state that the recertification is due 45
days prior to the certification effective date, and that a
notice of termination will be served if the recertification
remains incomplete 30 days prior to the effective date.
However, the notice also states that a certification
completed after the expiration date will not be
accepted. Thus, appellant had until December 31, 2015 to
present case, respondent sent appellant a 120-day notice on
September 1, 2015, a 90-day notice on October 1, 2015, and a
60-day notice on November 2, 2015. The 120-day notice set a
recertification interview for September 11, 2015. However,
appellant was unable to meet with the property manager during
this period because she was living in a 90-day substance
abuse program. She was not allowed to leave the facility for
the first 40 days, and even after this “blackout”
period, she was only allowed to leave under very specific
sister, Leticia Llamas, told the respondent's property
manager, Maria Velez, that appellant was in a rehabilitation
program and asked if she still had time to complete the
process. Velez said “yes”, but told her that
appellant still had to come in personally and sign the
paperwork. Appellant also called Velez and explained the
situation. Appellant told Velez that she would be able to
come in to complete the recertification paperwork on November
returned home on November 22, 2015, and then met with Velez
on November 23 or 24. However, Velez refused to process
appellant's recertification. According to appellant, when
she went in to complete the recertification, Velez told her
that it was too late and that she would not be recertifying
appellant. Velez testified that when appellant came into her
office and told her she wanted to recertify, Velez told her
that she had spoken to her supervisor, Stacey Smith, and that
“we will not be renewing your lease.” She told
her that “we would not be able to do that.
Certification has ended.” However, Velez subsequently
testified that she only told appellant that respondent would
not renew her lease, not that she could not recertify under
the subsidy program.
appellant did not complete the recertification process, the
rent for the apartment went up to the full market rate of $1,
050. Appellant was not able to pay the full amount, and
respondent refused to accept her usual payment of $25.
January 19, 2016, respondent served appellant with a 3-day
notice to quit or pay rent. The notice stated that, because
appellant did not complete her recertification paperwork by
January 1, 2016, the rent for her apartment went up to the
full market rate of $1, 050 per month. Appellant did not pay
the full market rate rent as requested, nor did she vacate
then filed its unlawful detainer complaint, alleging that
appellant had been served with a 3-day notice, and that
appellant had failed to quit the premises or pay rent as
demanded. The complaint did not allege any other ground for
relief, such as failure to comply with the 60-day notice. A
copy of the 60-day notice was attached to the complaint, but,
although the notice did refer generally to various other
lease provisions, the only specific ground for termination in
the notice was failure to pay rent after appellant failed to
complete the recertification process.
trial took place on March 7, 8, 28, and April 18, 2016, in
Department 401, Judge Ikeda presiding. Ms. Velez and Ms.
Smith testified on behalf of respondent regarding
appellant's failure to recertify and failure to pay rent
after her federal subsidy expired, and their subsequent
service of the 3-day notice. Appellant testified that she was
in rehabilitation and unable to fill out the paperwork until
she was allowed to leave on November 22. 2015. She also
testified that, when she went to see Velez on November 23 or
24, Velez refused to allow her to complete the
recertification and told her that it was “too
Velez testified that she refused to renew appellant's
lease because of “some other incident that doesn't
serve as a basis for this particular lawsuit.”
Appellant's counsel objected that this testimony was
irrelevant, but the court overruled the objection. Velez then
testified that there was an incident involving
appellant's ex-boyfriend, Steve Valdivia, in which the
Kerman police came to the apartment. She also mentioned that
there had been a “rash of burglaries” in the
area, and that there was “stolen property” on the
premises. The court then sustained a relevance objection.
counsel also attempted to ask appellant about her stint in
the rehabilitation program, claiming that such 90-day
programs are imposed by courts in cases involving cocaine or
methamphetamine charges, and asking appellant if she had been
convicted of any Penal Code violations. The court sustained a
relevance objection to this question. Respondent's
counsel then asked further questions, which established that
appellant had not been convicted of any criminal conduct, and
that she had voluntarily enrolled in the rehab program.
court then concluded the evidentiary portion of the trial,
and directed the parties to submit post-trial briefs by March
18, 2016, with closing arguments on March 28, 2016.
at the hearing on March 28, the trial court informed the
parties that he had noticed additional issues that might
require presentation of further evidence. In particular,
Judge Ikeda claimed that, while he had been under the
impression that the sole basis for the termination was the
failure to complete the recertification, he later realized
that the termination might also be based on possible criminal
activity and drug use at the apartment. He also pointed out
that the 60-day notice had referenced certain lease covenants
regarding criminal activity and drug use which might support
the eviction. He noted that the respondent's counsel had
not pointed out that these provisions might support the
eviction, but he believed the alleged activity might fall
within the purview of the provisions. He also indicated that
he might not have sustained some of appellant's
objections if he had realized that the eviction might relate
to the criminal activity and drug use allegations.
Respondent's counsel stated that this was a “very
simple” case, and that it was based on the
“three-day notice” based on a ...