Filed 3/20/20




                              CERTIFIED FOR PUBLICATION
                      APPELLATE DIVISION OF THE SUPERIOR COURT
                     STATE OF CALIFORNIA, COUNTY OF LOS ANGELES


CALIFORNIA VALLEY PROPERTIES LLC,                      )   No. BV 033116
                                                       )
        Plaintiff and Appellant,                       )   Central Trial Court
                                                       )
                v.                                     )   No. 18STUD13856
                                                       )
YELIN BERLFEIN,                                        )
                                                       )
        Defendant and Respondent.                      )   OPINION
                                                       )

        APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas D.
Long, Judge. Affirmed.
        Allen R. King, Law Office of Allen R. King, for Plaintiff and Appellant California
Valley Properties LLC.
        No appearance for Respondent and Defendant Yelin Berlfein.
                                   *               *             *




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                                          INTRODUCTION
          The City of Los Angeles Rent Stabilization Ordinance (LARSO) bars an eviction based
on violation of a rental agreement occupancy restriction when “the additional tenant who joins
the occupants of the unit . . . is . . . the sole additional adult tenant,” but the landlord is given
“the right to approve or disapprove the prospective additional tenant . . . , provided that the
approval is not unreasonably withheld.” (L.A. Mun. Code (LAMC), § 151.09.A, subd. (2)(b).)
We hold an eviction due to a tenant violating an agreement by having an additional adult in a
dwelling is only proper when the landlord has reasonably withheld approving the additional
tenant.
          Plaintiff and appellant California Valley Properties LLC appeals the judgment entered in
favor of defendant and respondent Yelin Berlfein in a residential unlawful detainer action.
Plaintiff contends the court erred in granting defendant’s summary judgment motion,
maintaining defendant failed to meet his burden of showing there were no triable issues of
material fact regarding his affirmative defenses.
          We affirm. The eviction was based on defendant violating the condition of his rental
agreement that barred more than one adult and one child living in his apartment, because there
were two adults residing in the unit, the tenant and his wife. However, defendant established
there was no triable issue of fact as to the eviction being barred by LAMC section 151.09.A,
subdivision (2)(b)), because there was no indication plaintiff reasonably disapproved the
additional occupant. Since the defense was established, judgment was properly entered in
defendant’s favor.
                                          BACKGROUND
          On December 27, 2018, plaintiff filed an unlawful detainer complaint against defendant
based on failure to comply with a three-day notice to perform a covenant in a rental agreement.
The complaint alleged the property was subject to LARSO. The notice indicated defendant
breached the provision of a 1999 written rental agreement which restricted occupancy in the
apartment to “no more than 1 adults 1 children [sic]” residing in the unit because, in addition to




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defendant, “[t]here is an adult female living in the apartment.”1 Plaintiff sought possession of
the property, forfeiture of the rental agreement, damages, and attorney fees.
       On February 15, 2019, defendant filed an answer, denying the allegations in the
complaint. Defendant asserted several affirmative defenses, including checking off the box in
his form answer that plaintiff violated the rent control law because “[l]andlord does not state
and/or have cause for the eviction. L.A.M.C. § 151.09(A).” Defendant also asserted plaintiff
waived the right to evict him for violating the occupancy covenant because “[l]andlord
accepted rent with actual and/or constructive knowledge of the alleged breach.” Defendant
elaborated in the answer that “the owner agent as well as the prior owners and their agents,
have accepted rent with full knowledge that his wife is residing with him in the apartment.”
       Defendant filed a motion for summary judgment supported by a memorandum of points
and authorities setting forth his arguments and the law governing summary judgment in
unlawful detainer actions. Defendant also filed his declaration in support of the motion.
       In the declaration, defendant averred that on March 1, 1998, he moved into the
apartment unit at issue with a woman and their minor son under a rental agreement limiting
occupancy to “two adults and one child.” When he and the woman broke off their relationship
and the woman moved out in late 1998, defendant was told by the manager that he should sign
an amended agreement (the 1999 agreement) as a “formality to reflect the fact that [the second
adult] was no longer living there.” Defendant asserted, “I was told that I must sign it, that if I
want to continue to live in the apartment I must sign this amendment.” (Capitalization
omitted.)
       Defendant further declared that, at the time the three-day notice was served, his son, who
was now an adult, had moved out of the apartment, and only defendant and his wife (a different
woman than the one who moved out in 1998) occupied the apartment. Defendant also
maintained that his wife lived at the apartment for the last four years and “the managers who


       1
        A copy of the agreement was attached to the complaint. It provided the rental was for an
apartment consisting of “2 bedrooms, 2 baths” for the period of one year starting in February 1999, for
$850 per month, and that the rental would continue on a month-to-month basis after the period expired.
The complaint maintained that, over the years, the rent was increased to the current monthly rent of
$1,551.93.

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collect the rents often talked to [defendant] and [his] [current] wife,” but never took steps to
enforce the occupancy limitation in the 1999 agreement. Defendant additionally asserted
plaintiff became the owner of the apartment complex “only about six months ago” and “[i]t was
only a few months after the current owner purchased the apartment building that they decided
to evict [defendant].”
       Defendant’s memorandum of points and authorities argued defendant was coerced into
signing the 1999 agreement; he did not violate the conditions of his 1999 agreement, because
the agreement must have contemplated that, when the child in the unit turned 18, defendant
would be allowed to have one additional adult occupy the premises; and that plaintiff waived
the right to evict him. The memorandum further stated, “The landlord may not unseasonably
[sic] disapprove of an additional tenant. LARSO 151.09A(2)(b),” and concluded by stating,
“Finally, even in case of additional tenant in violation of the rental agreement (which is NOT
the case here, as here there was no violation), a landlord may not unreasonably approved [sic]
an additional tenant. (LARSO A(2)(b)).” (Highlighting and capitalization in original.)
       Plaintiff filed an opposition to the motion, arguing defendant was not entitled to
summary judgment because he failed to establish “a recognizable affirmative defense to the
[unlawful detainer] cause of action.” According to plaintiff, defendant claimed he was
coerced into signing the 1999 agreement, but defendant failed to “elaborate on what [sic]
constituted the coercion other than he was told he must sign the new agreement.” Plaintiff
further argued LARSO allowed defendant to have one additional person in the unit under
LAMC section 151.09.A, subdivision (2)(b), only when a tenant has sought permission “prior
to the extra person moving in,” and “[t]here is no evidence that the defendant sought permission
to have another occupant in the apartment.” (Underlining in original.)
       Plaintiff attached to the opposition the declaration of Rebecca Rosen, an agent of
plaintiff, who asserted plaintiff acquired the property in April 2018, and that she “became
aware that the defendant had an unauthorized adult female residing in the unit.” Rosen stated
she “never gave the defendant permission to have another person live in the unit” and “never
intended to waive the plaintiff’s right to enforce the lease agreement.”



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       A hearing on the motion for summary judgment was conducted on February 26, 2019,
and the court requested the parties to submit further briefing as to waiver, estoppel, and
unconscionability. After the submission of supplemental briefs, the trial court took the matter
under submission.
       On March 27, 2019, the trial court issued an order granting defendant’s motion for
summary judgment. The court determined defendant established defenses which included the
1999 agreement being unconscionable, and that plaintiff, due to its predecessor owner’s
acceptance of rent knowing two adults occupied the residence, waived the right to evict
defendant.
       On March 27, 2019, the court entered judgment in favor of defendant. Plaintiff filed a
timely notice of appeal.
                                          DISCUSSION
Legal Standards
       A motion for summary judgment is properly granted only when “all the papers
submitted show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) When a
defendant moves for summary judgment, he or she may present evidence to show that one or
more elements of the cause of action cannot be established by the plaintiff, or that the defendant
has established an affirmative defense to the cause of action. (See Code Civ. Proc., § 437c,
subds. (o), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) Once the
defendant’s initial burden has been met, the burden shifts to the plaintiff to demonstrate there is
a triable issue of material fact as to the cause of action or affirmative defense. (Code Civ.
Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
       Violation of a rent control ordinance is an affirmative defense, over which a tenant bears
the burden of proof. (See Evid. Code, § 500; Birkenfeld v. City of Berkeley (1976) 17 Cal.3d
129, 149.) With respect to LARSO, LAMC section 151.01 provides, in this regard, “In order to
assure compliance with the provisions of this chapter violations of any of the provisions of this
chapter may be raised as affirmative defenses in unlawful detainer proceedings.”



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       We review an order granting summary judgment de novo. (Hartford Casualty Ins.
Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.) “[W]e apply the same three-step
analysis used by the [trial] court. We identify the issues framed by the pleadings, determine
whether the moving party has negated the opponent’s claims, and determine whether the
opposition has demonstrated the existence of a triable, material factual issue. [Citation.]”
(Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) The construction of statutes and
ordinances is also reviewed de novo. (Weingarten Realty Investors v. Chiang (2012) 212
Cal.App.4th 163, 167-168; City of San Diego v. Rider (1996) 47 Cal.App.4th 1473, 1490.)
The LARSO Issue
       To prevail in the motion for summary judgment, defendant was required to set forth
facts sufficient to establish there was no triable issue of material fact as to an affirmative
defense for the cause of action. The court found defendant showed there was no triable issue
regarding defenses that included unconscionability and waiver. But, we do not decide whether
the court correctly granted summary judgment based on the reasons it provided.
       We gave the parties the opportunity to file letter briefs on whether the judgment should
be affirmed because there was no triable issue of material fact as to LARSO barring the
eviction. (See Code Civ. Proc., § 437c, subd. (m)(2) [“Before a reviewing court affirms an
order granting summary judgment or summary adjudication on a ground not relied upon by the
trial court, the reviewing court shall afford the parties an opportunity to present their views on
the issue by submitting supplemental briefs. The supplemental briefs may include an argument
that additional evidence relating to that ground exists, but the party has not had an adequate
opportunity to present the evidence or to conduct discovery on the issue. The court may
reverse or remand based upon the supplemental briefs to allow the parties to present additional
evidence or to conduct discovery on the issue. If the court fails to allow supplemental briefs, a
rehearing shall be ordered upon timely petition of a party”].) Only plaintiff filed a brief, which
we have considered. We proceed to affirm based on plaintiff’s noncompliance with LARSO.
       There was no dispute as to whether the property was subject to LARSO, as this was
alleged by plaintiff in the complaint and was not denied in the answer. In the answer, although
defendant did not assert with specificity why LARSO was violated, he checked the box

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indicating “[l]andlord does not state and/or have cause for the eviction. L.A.M.C.
§ 151.09(A).” Also, one of defendant’s arguments in his points and authorities was that
“[t]he landlord may not unseasonably [sic] disapprove of an additional tenant. LARSO
151.09A(2)(b),” and plaintiff countered that the defense was inapplicable because a tenant must
seek permission to have an additional tenant “prior to the extra person moving in,” and “[t]here
is no evidence that the defendant sought permission to have another occupant in the apartment.”
At issue was whether LARSO barred the eviction, and we can affirm on this basis even though
it was not a ground relied on by the trial court. (Code Civ. Proc., § 437c, subd. (m)(2).)
LARSO Barred the Eviction
       LAMC section 151.09.A states, in relevant part, “A landlord may bring an action to
recover possession of a rental unit only upon one of the following grounds,” and proceeds to
enumerate 14 grounds. The second ground is stated as follows: “2. The tenant has violated a
lawful obligation or covenant of the tenancy and has failed to cure the violation after having
received written notice from the landlord, other than a violation based on: [⁋] (b) The obligation
to limit occupancy, provided that the additional tenant who joins the occupants of the unit
thereby exceeding the limits on occupancy set forth in the rental agreement is either the first or
second dependent child to join the existing tenancy of a tenant of record or the sole additional
adult tenant. For purposes of this section, multiple births shall be considered as one child. The
landlord, however, has the right to approve or disapprove the prospective additional tenant, who
is not a minor dependent child, provided that the approval is not unreasonably withheld.”
       There is no triable issue as to the only additional tenant on the property being
defendant’s wife, an adult. Also, the sole ground listed for the eviction in the notice to quit and
in the complaint was a violation of the rental agreement’s occupancy limit by having one adult
female in the unit, and defendant in his declaration established only one additional person was
living in the unit. Although the three-day notice signaled the landlord disapproved of
defendant’s wife living in the unit, there was no evidence presented at the summary judgment
motion of the reasons for the disapproval. Without that evidence, it was impossible to establish
the disapproval was reasonably withheld and, by necessity, impossible to establish the eviction



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was authorized by LAMC section 151.09.A, subdivision (2)(b). Hence, there was no triable
issue that plaintiff failed to set forth a lawful ground for the eviction.
       Although given the opportunity to do so (see Code Civ. Proc., § 437c, subd. (m)(2)),
plaintiff in its supplemental brief did not indicate there was any evidence that it reasonably
withheld approval of defendant’s wife as a tenant. Plaintiff maintained, as it did in the trial
court, that it could evict defendant due to having one additional adult person in the apartment
because there was no evidence that defendant asked for approval from the landlord to have the
person reside in the unit. Focusing on the portion of the law that states the landlord “has the
right to approve or disapprove the prospective additional tenant,” plaintiff argues the provision
should be construed to allow evictions based on a violation of an occupancy covenant unless
the tenant has requested approval and the approval was unreasonably denied. We reject such a
construction.
       Plaintiff misunderstands the operation of the just cause provisions of LARSO. An
eviction under the ordinance is barred unless a ground for the eviction is expressly set forth.
Under LARSO, “A landlord may bring an action to recover possession of a rental unit only
upon one of the [listed] grounds.” (LAMC, § 151.09.A.) Based on a plain reading of LAMC
section 151.09.A, subdivision (2)(b), no ground is stated for eviction when a tenant has violated
a covenant by having one extra adult in the unit and has failed to secure the landlord’s
permission. (See California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist.
(1997) 14 Cal.4th 627, 633 [to determine a law’s intent, a court “scrutinize[s] the actual words
of the statute, giving them a plain and commonsense meaning”].) Instead, the ground for
eviction indicated applies when there is a violation of occupancy restrictions for having one
additional adult tenant, the landlord has disapproved the additional tenant, and the landlord
reasonably withheld approval.
       Use of the term “prospective tenant” appears to simply reference that the “sole
additional adult” is considered a “prospective tenant” from the landlord’s perspective, because
the rental agreement is with the tenant, and the landlord has not given permission for anyone
else to live there. In any event, there simply is no provision in the law that states tenants must
notify a landlord of an additional tenant and ask for approval or be subject to eviction when one

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additional tenant is discovered living in a unit. (See Gillotti v. Stewart (2017) 11 Cal.App.5th
875, 896 [“[i]nserting additional language into a statute violates the cardinal rule of statutory
construction that courts must not add provisions to statutes”].)
          To the extent the ordinance is ambiguous on whether an eviction is allowed even if no
prior authorization was sought, we construe the law to effectuate its underlying purpose and
avoid absurd results. (See Amador Valley Joint Union High Sch. Dist. v. State Bd. of
Equalization (1978) 22 Cal.3d 208, 245 [“The literal language of enactments may be
disregarded to avoid absurd results and to fulfill the apparent intent of the framers”].)
          “LARSO was born out of the shortage of affordable housing, especially for low-income
individuals, in Los Angeles. [Citation.] It seeks to ‘safeguard tenants from excessive rent
increases’ by imposing certain statutory limitations and obligations on landlords which
landlords would otherwise not be subject to under normal freedom to contract principles . . . ,
[including], prohibit[ing] landlords from terminating leases without one of 14 enumerated
‘good causes.’ [Citation.]” (Boston LLC v. Juarez (2016) 245 Cal.App.4th 75, 84.)
“Permitting landlords . . . with superior bargaining power to forfeit leases based on minor or
trivial breaches would allow them to strategically circumvent LARSO’s ‘good cause’ eviction
requirements and disguise pretext evictions under the cloak of contract provisions.” (Id. at
p. 85.)
          Under plaintiff’s interpretation of LAMC section 151.09.A, subdivision (2)(b), an
eviction would be allowed based on the presence of one additional adult when no prior
approval was sought, even if it would have been unreasonable for the landlord to disapprove of
the additional person. This is an absurd result which would disserve the purpose of the rent
control law.
          The City of Los Angeles Rent Adjustment Commission (RAC) Regulations state a
landlord may increase rent when additional tenants move in. (RAC reg., § 311.02. See 1300 N.
Curson Investors, LLC v. Drumea (2014) 225 Cal.App.4th 325, 334 [noting LAMC, § 151.03
gave the RAC “the authority to promulgate policies, rules and regulations to effectuate the
purposes of [LARSO]”].) And, citing LAMC section 159.09.A, subdivision (2)(b), the RAC
regulations provide, “The landlord shall maintain the right to approve or disapprove a

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prospective adult tenant, provided that approval is not unreasonably withheld” (RAC reg.,
§ 312.01), and state, “In approving an additional tenant, the landlord may apply commonly
accepted standards for screening tenants including the tenant’s rental history, ability to pay the
monthly rent, creditworthiness and employment” (RAC reg., § 312.02). Allowing evictions
when there is no indication any such criteria would have been satisfied had approval been
sought would permit evictions based on a nonsubstantive or trivial violation of a rental
agreement and be counterproductive to LARSO’s stated purpose. (See Boston LLC v. Juarez,
supra, 245 Cal.App.4th at p. 85.)
       The illogic of such a result is illustrated by the undisputed facts of the present case. The
rental agreement provided the apartment consisted of “2 bedrooms, 2 baths,” and there was no
indication that plaintiff could have presented any evidence showing plaintiff wanted to prevent
defendant’s wife from occupying the premises for any ground enumerated in the RAC
regulations or for any other reasonable reason.
       The evidence showed the sole justification for not allowing defendant’s wife to live with
her husband was due to the rental agreement limiting occupancy to one adult and one child.
Rosen, plaintiff’s agent, asserted in her declaration that, after plaintiff acquired the property,
she “never gave the defendant permission to have another person live in the unit” and “never
intended to waive the plaintiff’s right to enforce the lease agreement.” Even assuming the
declaration raised a triable issue as to whether plaintiff would have disapproved the occupancy
if permission had been sought prior to the service of the eviction notice, plaintiff has not
pointed to any evidence that could have been presented to show such disapproval would have
been reasonable.
       Plaintiff urges we interpret the LARSO provision to require advance approval in order to
alert a landlord that the rent could be increased based on extra occupancy. Plaintiff’s argument
does not take into account that a rent hike is only allowed “if the additional tenant increases the
number of tenants that existed at the inception of the tenancy of the current occupants” (RAC
reg., § 310.02), and since there were two tenants at the start of the 1999 agreement (defendant
and his son), a rent increase was barred because there were still only two tenants in the unit
when defendant and his wife lived in the location at the time of the eviction action. In addition,

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as defendant’s wife merely replaced his son under the 1999 agreement when the son moved
from the apartment, no rent increase was allowed for the substitution. (See RAC reg.,
§§ 313.01 [“When an original tenant of record vacates the rental unit, the tenant may be
replaced without an increase in rent, provided the resulting total number of tenants does not
exceed the number of tenants that existed at the inception of the tenancy . . . .”], 313.02
[“Adults and/or children may substitute for each other as replacement tenants. A child may be
replaced with an adult tenant or vice versa”].)
       But, more importantly, there is no provision in the RAC regulations that requires that a
tenant notify a landlord of any increases in tenancy. The provisions only mandate notification
by a tenant when there has been a rent increase and the tenant seeks a rent reduction due to the
additional tenant having moved out. (RAC reg., § 310.04 [“In order to obtain a rent decrease,
written notification from the tenant must be provided to the landlord stating by name, the
additional tenant that will be vacating or has vacated the rental unit and the move-out date”].)
The RAC regulations express an intent that no notice is required to be given by a tenant when a
person or persons move in, and it would be anomalous to carve out an exception to facilitate
rent increases when one additional adult begins living at a location in violation of a rental
agreement.
       Citing LAMC section 159.09.A, subdivision (2)(b), the RAC regulations further provide,
“Where there is a written lease agreement limiting occupancy, and an additional tenant moves
into the unit, thereby exceeding the occupancy limit, the landlord may not evict the additional
tenant in the following circumstances: [⁋] ● The additional tenant is the first or second
dependent child; or [⁋] ● The additional tenant is the sole additional adult tenant and the
landlord has unreasonably withheld approval of the additional tenant.” (RAC reg., § 312.05,
italics added.) It follows, conversely, the regulations contemplate an additional tenant can be
evicted when the additional tenant is the sole additional adult tenant and the landlord has
reasonably withheld approval of the additional tenant. This is in accord with the construction
we adopt of LAMC section 159.09.A, subdivision (2)(b), allowing a landlord to evict a tenant
based on violation of occupancy restrictions for having one additional adult tenant if the
landlord has reasonably withheld approval of the additional tenant’s occupancy.

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       There was no evidence of the reasons for plaintiff’s disapproval of the defendant’s wife
living in the unit, and therefore no triable issue of fact on whether the eviction was authorized
by LAMC section 151.09.A, subdivision (2)(b). Summary judgment in defendant’s favor was
properly granted.2
                                            DISPOSITION
       The judgment is affirmed. Defendant to recover costs on appeal.


                                                     _________________________
                                                     Ricciardulli, J.

       We concur:


       _________________________                     _________________________
       Kumar, Acting P. J.                           Richardson, J.




       2
         Without further developing the argument and failing to list it under its own heading, plaintiff
also maintained on appeal that the court in its summary judgment order did not refer to specific
evidence, as required by Code of Civil Procedure section 437c, subdivision (g). We conclude raising
an appellate issue in such a manner resulted in it being forfeited. (See Cal. Rules of Court,
rule 8.883(a)(1)(A); Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289,
1294.) In any event, as we review the order de novo and decide the matter pursuant to Code of Civil
Procedure section 437c, subdivision (m)(2), any error by the court in this instance was harmless.

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