Eshagian v. CepedaEshagian v. Cepeda
Basta, Eric Post and Daniel J. Bramzon for Defendant and Appellant.
Grant Shenon, David M. Almaraz and Nicholas Koo for Plaintiff and Respondent.
We transferred this case from the appellate division of the superior court to decide whether a tenant can appeal a judgment for possession in an unlawful detainer proceeding if the landlord has outstanding damages claims that have not been adjudicated. The answer is no. If the landlord‘s complaint seeks damages, the possession-only judgment is not appealable because it does not resolve all rights of the parties.
Where, as here, the tenant has defaulted on the complaint, the tenant‘s options are limited. But the tenant does have recourse. The tenant can file a petition for writ of mandate under
In this case, the possession-only judgment entered against the defaulted tenant, Manuel Cepeda, is not appealable. However, given the uncertainty of the law on appealability at the time Cepeda filed his appeal, we treat the appeal as a petition for writ of mandate to avoid any further delay. We conclude the three-day notice to pay rent or quit served by the landlord, Joseph Eshagian, pursuant to
A. The Tenancy, Three-day Notice, and Complaint
Eshagian leased to Cepeda a residential unit in Van Nuys (the premises). Pursuant to the lease agreement, Cepeda was required to pay $1,000 a month in rent. On December 20, 2022 Eshagian served Cepeda with a “3 Day Notice To Pay or Quit.” The notice stated Cepeda owed a total of $8,000 in unpaid rent due from April 1 to November 1, 2022. The notice specified the rent was to be paid to Eshagian by check, cashier‘s check, or money order; it listed the address of Cepeda‘s unit as the “[a]ddress to where rent may be delivered“; and it stated the rent could be delivered any day of the week from 8:00 a.m. to 9:00 p.m. The notice did not specify the date on which the three-day notice commenced (simply listing “12/19/2022” on the notice to the left of Eshagian‘s signature with no explanation), nor did it state that Cepeda would lose possession of the premises if he did not pay the amount due by a specified date.
On December 27, 2022 Eshagian filed a verified unlawful detainer complaint alleging Cepeda did not pay the rent due. The complaint sought possession of the premises, forfeiture of the lease, unpaid rent of $8,000, holdover damages in the amount of $33.33 per day from the date of expiration of the three-day notice until the date of judgment, and reasonable attorneys’ fees. The complaint attached a copy of the three-day notice and proof of service as an exhibit.
B. The Entry of Default and Possession-only Judgment and Cepeda‘s Motion To Vacate
On January 9, 2023 Cepeda, representing himself, filed an answer in which he denied the allegations he had not paid the rent since April 2022, he unlawfully continued in possession of the premises, and he owed $33.33 per day for use and occupancy of the premises. Cepeda also asserted affirmative defenses, including that Eshagian breached the warranty of habitability and violated the COVID-19 Tenant Relief Act and local COVID-19-related ordinances.
In late January and early February 2023 Eshagian filed several motions to compel discovery responses.2 On March 8, 2023 the trial court granted the motions and ordered Cepeda to respond to Eshagian‘s discovery requests. On March 21 Eshagian filed a motion for terminating sanctions based on Cepeda‘s failure to comply with the court‘s discovery orders. Cepeda did not
On April 28, 2023, at Eshagian‘s request, the court clerk entered a default against Cepeda. On May 2, 2023 Eshagian filed a request for a clerk‘s judgment on Judicial Council form CIV-100, checking the boxes requesting the clerk to “[e]nter clerk‘s judgment . . . for restitution of the premises only and issue a writ of execution on the judgment.” Eshagian did not request any monetary damages. On May 3, 2023 the court clerk entered a clerk‘s judgment against Cepeda on Judicial Council form UD-110, checking boxes indicating the judgment was for “possession only.” The area of the form reserved for the amount of damages awarded had the words “possession only” written across the section. (Boldface and capitalization omitted.)
On May 19, 2023 Cepeda filed a motion to set aside and vacate the possession-only judgment pursuant to
On June 5, 2023 the trial court denied the motion to vacate, stating Cepeda should have raised the deficiencies in the three-day notice prior to entry of the possession-only judgment. Cepeda timely appealed the possession-only judgment and the order denying the motion to vacate to the appellate division of the superior court. (See
C. The Appellate Division Opinion and Transfer to This Court
Cepeda argued in the appellate division that the trial court erred in entering the judgment because the three-day notice was defective. Eshagian asserted the possession-only judgment was not appealable because Eshagian‘s damages claims were still pending and there was no final judgment. Cepeda urged the appellate division, if the possession-only judgment was not appealable, to treat the appeal as a petition for writ of mandate.
In its September 18, 2024 published opinion, the appellate division held the possession-only judgment was appealable. The appellate division recognized that Eshagian‘s damages claims were still pending in the trial court, but
Turning to the merits, the appellate division concluded the three-day notice was deficient because it failed to identify when the notice period commenced, did not give the address where the rent payment should be sent (instead listing Cepeda‘s unit number), and did not make clear that Eshagian would demand possession of the premises if the rent was not paid within the prescribed time. Therefore, the complaint, which incorporated the three-day notice, did not state a cause of action. The appellate division reversed the judgment and dismissed the appeal from the denial of the motion to vacate.
On October 9, 2024, on our own motion, we transferred the case to this court in order to secure uniformity of decision and to settle important questions of law with respect to the appealability of a possession-only judgment entered in an unlawful detainer action. (
DISCUSSION
A. Unlawful Detainer Proceedings and Standard of Review
“Unlawful detainer is a statutory remedy whose primary feature is its expedited procedure for the recovery of possession of real property wrongfully withheld or ‘detained.‘” (Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1066 (Superior Motels); accord, Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1297 [“The statutory scheme is intended and designed to provide an expeditious remedy for the recovery of possession of real property.“].) Accordingly, in an unlawful detainer proceeding, “[t]he only triable issue is the right to possession and incidental damages resulting from the unlawful detention.” (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 452; accord, Superior Motels, at p. 1066 [court in unlawful detainer proceeding may award possession of property and incidental damages, including “arrearages of rent or ‘damages’ in an amount of the fair or reasonable rental value of the property for the period of time from the notice terminating the tenant‘s right of possession to judgment“]; see
“General standards of appellate review apply to appeals . . . transferred for decision to the Courts of Appeal.” (People v. Disandro (2010) 186 Cal.App.4th 593, 599.) The court of appeal “shall have similar power to review any matter and make orders and judgments as the appellate division of the superior court would have in the case. . . .” Therefore, we review the trial court‘s order independently of the appellate division‘s opinion. (People v. Noriega (2004) 124 Cal.App.4th 1334, 1338-1339; see
Where, as here, the facts are undisputed, we determine a judgment‘s appealability as a matter of law. (Saffer v. JP Morgan Chase Bank (2014) 225 Cal.App.4th 1239, 1248 [“Where the evidence is not in dispute, a determination of subject matter jurisdiction is a legal question subject to de novo review“]; Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 42 [same].)
B. The Possession-only Judgment Is Not Appealable
“[A] reviewing court lacks jurisdiction on direct appeal in the absence of an appealable order or judgment.” (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 21; accord, Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696; see Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [“[e]xistence of an appealable judgment is a jurisdictional prerequisite to an appeal“].) “The right to appeal is wholly statutory.” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 (Dana Point); accord, Finance Holding Co., LLC v. Molina (2018) 29 Cal.App.5th 663, 673.) As the Supreme Court explained in Dana Point,
“‘It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.‘” (Dana Point, supra, 51 Cal.4th at p. 5.)
No published cases have addressed the appealability of a possession-only judgment entered after a tenant‘s default in an unlawful detainer proceeding in which the complaint sought damages in addition to possession. Eshagian relies on Superior Motels, supra, 195 Cal.App.3d at page 1047 and First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 863 (First Western) to support his contention that a possession-only judgment in an unlawful detainer proceeding is interlocutory and not appealable. Although we agree with Eshagian that possession-only judgments are not appealable, the cited cases are not persuasive authority because the courts addressed this question only as dicta in recounting the history of the cases.
In Superior Motels, the lessee of a commercial property (Superior) filed an unlawful detainer action against various entities that had sublet the premises. (Superior Motels, supra, 195 Cal.App.3d at pp. 1041-1044.) Following a court trial, the trial court entered “an interlocutory judgment declaring Superior‘s right to possession” and ordered the defendants to provide an accounting of accrued rents and profits during the relevant time frame. (Id. at p. 1047.) The court then held an evidentiary hearing on accounting issues and entered a final judgment awarding damages to Superior. (Ibid.) Multiple
Eshagian‘s reliance on First Western is likewise misplaced. That case involved whether real party in interest Albert Andrisani was a vexatious litigant with respect to his filing of multiple lawsuits against First Western seeking damages arising out of an earlier unlawful detainer action. (First Western, supra, 212 Cal.App.3d at pp. 862-863Id. at p. 863.)
In determining whether a possession-only judgment is an appealable judgment, we follow the guiding principles set forth in Dana Point, supra, 51 Cal.4th 1. As discussed, the relevant inquiry is whether there is any issue left for future consideration by the court other than compliance with the possession-only judgment. (Id. at p. 5.) Eshagian‘s complaint sought unpaid rent and holdover damages in addition to possession of the property. Despite entry of the possession-only judgment, the complaint has not been dismissed, and Eshagian‘s damages claims are still pending. Further,
Cepeda‘s alternative contention that the possession-only judgment was appealable under the collateral order exception to the one-final-judgment rule fares no better. In some circumstances, “[c]ourts have also treated collateral orders as appealable, holding that ‘[w]here the trial court‘s ruling
Cepeda argues the award of damages “is not a ‘necessary step’ to determine the issue of possession and is, therefore, collateral,” citing Park v. Law Offices of Tracey Buck-Walsh (2021) 73 Cal.App.5th 179, 188 (trial court order requiring plaintiff to pay third party Department of Justice for production of electronically stored documents was appealable because it was “collateral to the subject matter of the main litigation,” was final as to the collateral matter, and required payment of money). But the question here is whether the possession-only judgment is appealable as a collateral order, not whether the damages award would be appealable. In any event, the determination of possession was not “‘distinct and severable from the general subject of the litigation‘“—the determination of the parties’ rights under the lease. (In re Marriage of Grimes & Mou, supra, 45 Cal.App.5th at p. 419.)
Cases addressing the appealability of interim judgments in bifurcated trials are instructive. Courts have consistently held that interlocutory orders following the first phase of a trial, even if fashioned as a judgment, are not appealable. For example, in Baker v. Castaldi (2015) 235 Cal.App.4th 218, the trial court bifurcated trial of the plaintiffs claims for stealing antiques into two phases—the first to address liability, compensatory damages, and whether punitive damages were warranted, and the second to determine the amount of punitive damages. At the conclusion of the first phase, the trial court entered a “judgment” in favor of the plaintiff that awarded compensatory damages and found punitive damages were warranted in an amount to be assessed in a “separate trial.” (Id. at p. 221) The defendants purported to appeal from the judgment, but the Court of Appeal dismissed the appeal, reasoning, “[I]t seems quite clear that the . . . ‘judgment’ was interlocutory. While a final judgment leaves no issue left for future consideration except compliance [citation], the . . . ‘judgment’ did leave open an issue for future consideration: the amount of punitive damages. Determining the amount of punitive damages at a court trial seems quite clearly to be a type of ‘judicial action on the part of the court’ that is ‘essential to a final determination of the rights of the parties. . . .‘” (Id. at p. 223; see Walton v. Magno (1994) 25 Cal.App.4th 1237, 1240 [“when a trial is bifurcated and first proceeds on the issue of
In both Baker and Walton, despite the fact that liability had been determined, the unresolved damages claims rendered the judgment interlocutory. The same is true here, where even though the primary objective of the proceeding to recover possession has been resolved, the outstanding damages claims remain to be adjudicated. Thus, the possession-only judgment is not appealable.
C. Cepeda Could Have Challenged the Possession-only Judgment by Filing a Petition for Writ of Mandate
We are sympathetic to Cepeda‘s argument that if a possession-only judgment is not appealable, a tenant in default will have no recourse to challenge the judgment if the landlord does not pursue a claim for damages alleged in the complaint. But a defaulted tenant in this situation—who seeks review of a possession-only judgment in the absence of a final judgment on a landlord‘s damages claims—may obtain review of the judgment by filing a petition for writ of mandate. (See
A defaulted tenant will generally be able to show there is no adequate remedy at law to challenge a possession-only judgment (in addition to a likely showing of irreparable harm if the tenant is facing eviction). That is because “a party who is in default is barred from further participation in the proceedings,” including raising a challenge at the default prove-up hearing. (Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 343 (Siry); accord, Rios v. Singh (2021) 65 Cal.App.5th 871, 887 [where defendant had not shown that default was improperly entered, “[t]he entry of default bars [defendant] from advancing contentions on the merits“]; Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823 [“Procedurally, the entry of a default . . . cuts off the right [of a defendant] to file pleadings and motions, and the right to notices and the service of pleadings.“].)
Thus, a defaulted tenant has no ability to appear in the trial court to request the setting of a trial date on a landlord‘s damages claims. It would be unfair
Moreover, most remedies available to a defendant to challenge entry of a default judgment in the trial court are not available to a tenant in an unlawful detainer action because the challenged possession-only judgment is not a final judgment. For example, a defaulted defendant generally may challenge entry of the default judgment based on the sufficiency of the complaint by filing a motion to vacate a nonjury “judgment or decree” under
A defaulted defendant alternatively may generally file a motion under
Nor can a tenant in default, if properly served, file a motion to set aside a “void judgment or order” under
Accordingly, unless the judgment can be challenged as void, a defaulting defendant has no recourse in the trial court.
However, in an appeal from the default judgment, the tenant can argue that the unlawful detainer complaint failed to state a cause of action because it did not attach a valid notice to quit. (See Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282 [“On appeal from the default judgment, ‘[a]n objection that the complaint failed to state facts sufficient to constitute a
Cepeda at oral argument expressed his concern that a petition for a writ of mandate is not an effective remedy because review of writ petitions is discretionary and writ petitions are rarely granted. Cepeda is correct that most petitions for writ of mandate are denied. (See Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1271 [“Approximately 90 percent of petitions seeking extraordinary relief are denied.“].) However, as the Supreme Court explained in Powers v. City of Richmond (1995) 10 Cal.4th 85, 113 (Powers), the argument that appellate review by filing an extraordinary writ petition “is inherently less effective than a remedy by direct appeal because issuance of the extraordinary writs is discretionary whereas direct appeal guarantees a decision on the merits . . . betrays a serious misunderstanding of the discretionary character of extraordinary writs.”
As the Powers court explained, “When an extraordinary writ proceeding is the only avenue of appellate review, a reviewing court‘s discretion is quite restricted . . . ‘[W]here one has a substantial right to protect or enforce, and this may be accomplished by such a writ, and there is no other plain, speedy and adequate remedy in the ordinary course of law, he [or she] is entitled as a matter of right to the writ, or perhaps more correctly, in other
In Powers, the Supreme court considered whether
Because a tenant in default cannot challenge the adequacy of the three-day notice by appealing the possession-only judgment, the only remedy available to the tenant is to file a petition for a writ of mandate. Thus, upon the filing of an adequately pleaded petition for writ of mandate in the appellate division challenging a possession-only judgment, the appellate division must reach the merits of the petition, and if the petition shows the tenant is entitled to relief, the court must issue the writ because there is no plain, speedy, and adequate remedy in the ordinary course of law, and therefore the tenant “is entitled as a matter of right to the writ.” (Powers, supra, 10 Cal.4th at p. 114; see Leone v. Medical Board, supra, 22 Cal.4th at pp. 669-670 [when a writ petition constitutes the exclusive means of obtaining appellate review of an order, “an appellate court must judge the petition on its procedural and substantive merits“].)
In this case, at the time Cepeda filed his notice of appeal on June 8, 2023, the Los Angeles County Sheriff‘s Department had served Cepeda with
D. We Treat Cepeda‘s Purported Appeal as a Petition for Writ of Mandate
Cepeda urges us to exercise our discretion to consider his appeal as a petition for writ of mandate because at the time he appealed there was a lack of clarity as to whether the possession-only judgment was an appealable order. Further, he argues, he lost his home notwithstanding Eshagian‘s failure to comply with the three-day notice requirements, and for us to deny review would “make it so landlords are the only parties who . . . may obtain summary relief despite not complying with the conditions for such relief, and can deprive the opposing party of judicial review by not seeking or waiving damages that are ancillary to the action.” We agree that there must be a path for tenants to expeditiously challenge a possession-only judgment given the high stakes the tenant‘s ability to remain in the premises. And Cepeda is correct that the limitations on an appeal are one-sided—the landlord has the ability promptly to appeal a judgment for the tenant because a final judgment will be entered if the tenant prevails on the unlawful detainer complaint. The ability of a tenant to file a petition for writ of mandate evens out the playing field, but given the posture of this case, we must decide whether to treat Cepeda‘s purported appeal as a petition for writ of mandate. Under the unusual circumstances here, we grant Cepeda‘s request to do so.
As we explained in Curtis, supra, 62 Cal.App.5th at pages 465 to 466, the Supreme Court in Olson v. Cory (1983) 35 Cal.3d 390, 401 (Olson) “considered five factors in holding it was appropriate to treat the appeal as a petition for a writ: Whether ‘(1) requiring the parties to wait for a final judgment might lead to unnecessary trial proceedings; (2) the briefs and record included, in substance, the necessary elements for a proceeding for a writ of mandate; (3) there was no indication the trial court would appear as a party in a writ proceeding; (4) the appealability of the order was not clear; and (5) the parties urged the court to decide the issues rather than dismiss the appeal.‘” Applying these factors, the court in Olson concluded there were “unusual circumstances” to treat the
Three of the five Olson factors are present here. At the time Cepeda filed his appeal, it was not clear whether a possession-only judgment was appealable. Indeed, the appellate division concluded the judgment was appealable, a decision we now reverse. In addition, this matter is fully briefed; the record is sufficient for a writ of mandate proceeding; and there is no indication the trial court would elect to appear in a writ proceeding. There is therefore no reason to require Cepeda to file a writ petition and have the parties brief the same issues, further delaying resolution of Cepeda‘s challenge to the three-day notice and whether Eshagian had a right to possession. (See Last v. Superior Court (2023) 94 Cal.App.5th 30, 44 [treating appeal from temporary support order as petition for writ of mandate where the matter was full briefed and argued, the record was sufficient for a writ proceeding, there was no indication the trial court would appear as a party, and “judicial economy would not be served by deferring resolution of the issues presented until rendition of an appealable judgment or order“]; Curtis, supra, 62 Cal.App.5th at p. 467 [where appeal was fully briefed, the record supported a writ proceeding, and there was no indication the trial court would appear, “[i]t would serve no purpose at this point to require Curtis to file a writ petition and have the parties submit the identical briefing on the petition“]; Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142 [treating purported appeal from order for sale of property in pending partition action as petition for writ of mandate because there was “uncertainty about [the] order‘s appealability” and the issue to be decided was a “pure question of law“].)
The Supreme Court‘s decision in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 732, 746 is instructive. There, the court held the judgment considered by the Court of Appeal was not an appealable order because it did not resolve all of the plaintiffs causes of action, but the Supreme Court treated the appeal as a petition for writ of mandate (and reversed the Court of Appeal‘s decision), explaining, “Judicial economy would not be served in this case by deferring resolution of the issues decided by the Court of Appeal until final judgment on all of plaintiffs’ causes of action. The merits of those issues not only have been briefed by the parties and decided by the Court of Appeal, but also have been thoughtfully addressed by a diverse group of amici curiae.”
We therefore treat Cepeda‘s appeal as a petition for writ of mandate.
“The Unlawful Detainer Act [(
”
In addition to requiring specific information regarding how rent is to be paid, the notice “must be framed in the alternative, viz., pay the rent or quit, . . . . ‘[The statute] clearly requires that a notice first be given to the delinquent tenant . . . that in the event of the failure of the tenant to make payment of delinquent rent . . . the plaintiff will exercise his right under the law to regain possession of the premises.‘” (Hinman v. Wagnon (1959) 172 Cal.App.2d 24, 27-28; accord, Horton-Howard v. Payton (1919) 44 Cal.App. 108, 112 [notice to quit must “clearly, positively, and unequivocally disclose the intention of the landlord to repossess the premises“]; Delta Imports, Inc v. Municipal Court (1983) 146 Cal.App.3d 1033, 1036 [“Where the condition or covenant allegedly violated is capable of being performed, the notice must give the tenant the alternative of performing or quitting possession.“].)
Finally, a landlord cannot prevail in an unlawful detainer proceeding unless the three-day-notice was properly served and the tenant has not paid the rent due within the three-day period.11 (Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 611 [“[p]roper service on the lessee of a valid three-day notice to pay rent or quit is an essential prerequisite to a judgment declaring a lessor‘s right to possession” under
If the landlord does not strictly comply with the requirements for a three-day notice, the landlord cannot prevail in an unlawful detainer action, and instead, “‘a landlord‘s remedy is an ordinary suit for breach of contract with all the delays that remedy normally involves and without restitution of
The three-day notice in this case was deficient in three respects. First, the notice was titled, “3 Day Notice To Pay Or Quit,” but it did not state that Eshagian would repossess the premises if Cepeda did not pay rent prior to expiration of the three-day notice period. The mere use of the words “pay or quit” in the title of the document was insufficient to “clearly, positively, and unequivocally” place Cepeda on notice that he was facing imminent eviction. (Horton-Howard v. Payton, supra, 44 Cal.App. at p. 112; accord, Hinman v. Wagnon, supra, 172 Cal.App.2d at pp. 27-28.)
Second, the notice did not state when the notice period commenced or ended, nor did it inform Cepeda that the three-day period excluded weekends and judicial holidays. The notice appears to have provided the date it was signed by Eshagian but not when the notice was served, which commenced the three-day period. We observe, for example, that the notice is dated December 19, 2022, but the complaint alleged the notice was served “[o]n or about December 20, 2022.” Absent this information, an ordinary tenant would not have reasonably understood the deadline by which the tenant needed to pay the rent due to avoid forfeiture of the premises.
Third, the notice was deficient because it did not provide a clear address where rent could be paid, as required by
Because the three-day notice failed to strictly comply with
Cepeda‘s appeal from the possession-only judgment and order denying the motion to vacate the judgment is dismissed. We deem the appeal from the judgment a petition for writ of mandate and grant the petition. We direct the trial court to vacate the possession-only judgment in favor of Eshagian and to enter a new judgment in favor of Cepeda. Cepeda is to recover his costs in the appeal to the appellate division and in this proceeding.
FEUER, J.
We concur:
SEGAL, Acting P. J.
STONE, J.