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Vexatious Litigants

Posted on July 3rd, 2013

A prior blog post addressed the issues involved in litigating a case with a pro per plaintiff. It is not uncommon for such suits to be completely baseless, and it may not be the first time your plaintiff has filed a pro per lawsuit that contains factual and legal shortcomings.  Often pro per litigants will file multiple lawsuits, sometimes in different venues, in an attempt to “shake down” the landlord.  Many times pro per plaintiffs obtain a fee waiver from the court, so they are not subject to the rather significant filing fee for a civil complaint.  The good news is that there is a remedy for this; the bad news is that the remedy applies in rather narrow circumstances.    

California law provides a process to have an individual deemed a “Vexatious Litigant”.  Code Civ. Proc. §391.  A Vexatious Litigant is defined as someone who either:

1) In the  immediate seven (7) year period has commenced, prosecuted, or maintained five (5) litigations, other than small claims, which have been decided against them;

2) After a litigation has been finally determined against them,  the litigant repeatedly relitigates or attempts to relitigate, in pro per, the validity of the determination against the same defendant or the cause of action which was finally determined as to the same defendant;

3) In any litigation, acting in pro per, repeatedly files unmeritorious, motions, pleadings or papers conducts unnecessary discovery  or engages in tactics that are frivolous and solely intend to cause delay; or

4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar, transaction or occurrence.

Once declared a vexatious litigant, an individual may be required to post a security bond in the case where the motion is pending or be subject to a pre-filing order preventing further pro per lawsuits without preapproval from the court.  Code Civ. Proc. §§391.1, 391.7.  The later remedy of a pre-filing order is especially useful to a landlord.  Upon entry of an order declaring the pro per plaintiff to be a vexatious litigant, the order is sent to the California Judicial Counsel, and the plaintiff is added to the vexatious litigant database.  Thereafter, the plaintiff must obtain prior approval of the presiding judge of the county before filing a pro per lawsuit in that county.  If for any reason a lawsuit is allowed to be filed without the prior approval, a motion at the pleadings stage attaching the pre-filing order should dispose of the case.

The standard for having a plaintiff declared a vexatious litigant are rather high, but can be achieved in the correct circumstance.  The attorneys at Ericksen Arbuthnot are available to discuss defending these types of actions and have had success in having plaintiffs declared vexatious litigants.

Dealing with a Pro Per Plaintiff

Posted on July 3rd, 2013

You are probably familiar with the old adage “he who represents himself has a fool for a client.”  This is often proven true, yet you will still encounter individuals who file a lawsuit without a lawyer (in legal terms the plaintiff is “in pro per”).

This is common in the landlord-tenant arena, especially in cases involving low cost housing.  The reason is obvious —the tenant does not have the resources to hire an attorney and the case does not carry enough value in the eyes of a plaintiff’s attorney to take it on a contingency basis.  This is true even though many tenant-protective statutes allow for the recovery of attorney’s fees for a successful plaintiff (i.e. Retaliatory Eviction under Civil Code §1942.5).  Therefore you may be presented with a circumstance where you are litigating a case against an unprepared and unpredictable plaintiff.

The key to successfully coping with this situation is patience.  Although in theory a pro per litigant is purportedly held to the same standard as a represented party, this is rarely the case in practice.  Many times courts will provide leniency for pro per plaintiffs in procedural matters to ensure the plaintiff is allowed his or her “day in court.”  It can be frustrating process and it will take additional time and cost to reach an eventual resolution.  For example, our firm has had to file multiple motions to compel discovery responses from pro per plaintiffs and to compel attendance at deposition.  In addition, even if the pro per plaintiff violates a court order, it can be difficult to obtain a terminating sanction from the court absent extraordinary circumstances.  Still, understanding this from the outset will help set realistic timing expectations.   

For landlords, there are procedures you can implement that will assist in handling a pro per lawsuit.  As in many cases, documents drive the defense.  Undoubtedly a pro per plaintiff will represent to the court inaccurate information or allege certain action (or inaction) of the landlord.  The more written confirmation of phone and in-person conversations you have, the better.  This also applies to any communication with tenants, not just those who may eventually file a lawsuit.  Having a clear record of what was said during conversations, when and how notices were issued, etc. makes defending  pro per lawsuits much more efficient and economical.  It is also important to avoid any attempts by a pro per plaintiff to communicate directly to the landlord.  These inquiries should be directed to the attorney so they can be properly addressed and documented.

Litigating a case with a pro per plaintiff can be an irritating process.  The attorneys at Ericksen Arbuthnot are available to discuss defending these types of actions as well as implementing polices to help avoid such suits.




Posted on July 3rd, 2013

A previous blog post touched on “good cause” evictions for section 8 recipients, similarly there are also other programs which impose eviction restrictions on landlords of government subsidized housing.   Two government agencies which provide development assistance to landlords are the California Department of Housing Community Development (“CDHCD”) and the California Tax Credit Allocation Committee (“CTCAC”).  Both of these agencies are involved with granting funds and tax credits to affordable housing providers, and both impose restrictions on eviction of tenants.

CTCAC administers a federal and state tax credit program to encourage development of affordable housing.  CDHCD’s mission is to “provide leadership, policies and programs to preserve and expand safe and affordable housing opportunities and promote strong communities for all Californians.”  Many affordable housing developers receive funds and benefits from both CTCAC and CDHCD to develop or refurbish housing units, making their eviction controls fairly ubiquitous.

Landlords for affordable housing must also keep in mind that a tax credit, or subsidized rent program, is a benefit and accordingly requires good cause for eviction.  Publicly owned housing tenants, tenants of units developed with state or federal funds or subsidized units all have good cause requirements.  However, cause can consist of actions on the premises which violate a law, such as the Anti-Drug Abuse Act, even where the tenant may not have known of such actions, as in section 8.  The failure to pay rent is always good cause.

Many of the government subsidy programs also have income restrictions on tenancies.  The amount required to trigger any tenancy changes depends on the terms of the financing.  Housing and Urban Development (HUD) and Housing and Community Development (HCD) income limits are changed on a yearly basis, and a tenant’s income needs to be recertified on a yearly basis. If the Public Housing Agency (PHA) or managing agency does not recertify on a yearly basis, regulators can rule the property out of compliance, which creates its own problems.   

If a tenant’s income exceeds the maximum amount, there are a few possible outcomes depending on the subsidy received, one of which may involve termination of the subsidized lease.  Low Income Housing Tax Credit (LIHTC) regulations require that the next available unit be made available to an income eligible household if a tenant exceeds the amounts proscribed by regulatory bodies.  Another example is if the development is receiving money from the HOME program for the unit, then the landlord may be able to raise the rent to 30% of the tenant’s income, depending.  If the unit is LIHTC controlled, the tenant is allowed to stay, but the rental amount is not subsidized, it is simply capped.

In sum, the rules governing the ability of a tenant to stay in an affordable housing unit are complicated and running afoul of them, even in earnest recertification efforts or to make room for the next needy tenant, can result in liability.  If you as a landlord have questions about what to do with the eviction of a tenant, the attorneys at Ericksen Arbuthnot are here to help.  Feel free to contact the any of the Ericksen Arbuthnot offices if you would like to speak with an attorney.


Posted on July 3rd, 2013

Readers of this blog should be aware of section 8, which is a program providing subsidized rent for low income tenants in private housing.  The operative federal statute is 42 USC §1437, or Section 8 of the United States Housing Act of 1937.  Section 8 creates a program in which the government subsidizes rental payments to private landlords on behalf of low-income tenants.  Once the landlord establishes a tenancy under the section, a tenant can be difficult to remove.

Under the Federal Statute, a section 8 recipient can only be evicted for “good cause”. Good cause is limited to: 1) Serious or repeated violations of the lease terms and conditions; 2) Violation of federal, state or local law that imposes tenant obligations in connection with the occupancy or use of the premises; or 3) “Other” good cause. (42 USC § 1437f(d)(1)(B)(ii); 24 CFR § 982.310(a); see 24 CFR § 983.257(a)).  The serious violation encompasses failure to pay rent; however, strangely enough, the lack of rental payment only applies to the occupant’s share of the rent, not the public housing agency. (24 C.F.R. § 982.310.) 

The second prong encompasses violations of law by the tenant, tenant’s family or a person under the tenant’s control.  If any of those groups are found to be violating the law, e.g. drug use and possession, the landlord may be able to evict the tenant.  This rule applies whether or not the tenant knew or should have known about the commission of the crime.  “42 U.S.C. § 1437d(l )(6)unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members and guests whether or not the tenant knew, or should have known, about the activity.”  (Department of Housing and Urban Development v. Rucker (2002) 535 U.S. 125, 130.)

The third and final cause for eviction when the tenant is a section 8 voucher recipient is, “Other good cause”, which is admittedly vague.  It appears that courts have left this clause nebulous to judge what good cause is on a case by case basis. (See Mitchell v. United States Dept. of Housing & Urban Develop. (ND CA 1983) 569 F.Supp. 701, 706–707.) However, blight caused by tenants or damage to the rental unit have constituted good cause.

Landlords will not want to run afoul of these regulations.  Section 8 wait lists are very long and the wrongful removal of a tenant from a property by a landlord can expose him or her to a significant damages claim in any litigation.  There are also special notice requirements for section 8 tenants whether a landlord simply does not renew the lease, or seeks to evict the tenants with good cause.  Keep in mind that local rent control ordinances may also protect tenants, imposing even further burdens or liabilities on section 8 landlords.

If you have questions regarding eviction of a section 8 voucher recipient, or have received a complaint based on wrongful eviction our offices are here to help.


Posted on July 3rd, 2013

Businesses might be surprised to know that criminal acts of 3rd parties on their property can result in liability. California law provides that if a property owner has reasonable cause to anticipate wrongful acts of 3rd parties and resulting injuries, that owner has an affirmative duty to control such wrongful acts.

That may seem like a high burden to impose on a business, but it does not mean that a property owner has to intervene in the middle of a parking lot mugging in order to spare his liability insurer a hefty payout.

Reasonable Cause to Anticipate Wrongful Acts

The key concept in this analysis is foreseeability. A court determining whether a property owner is liable for the acts of a 3rd party on the property will give significant weight to the foreseeability of the risk. If the risk which resulted in harm was foreseeable, a court will likely find the property owner had a duty to control the wrongful acts of 3rd parties and impose liability for any related breach of duty.

In other words, while a property owner need not become Batman and stop crimes in action, if a 3rd party criminal act happened on the owner’s property and it was foreseeable (i.e. something similar had occurred under similar circumstances in the near past), the owner could be found liable for not taking action to control the wrongful acts.

Duty to Control

Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385 illustrates how a business can become liable for 3rd party criminal acts. In that case, a customer of a Chinese food restaurant was attacked after leaving the restaurant. The restaurant admitted it knew there was gang activity in the area. The court found that since the restaurant did not light the parking lot, put a fence around the parking lot or provide security or put video cameras in the parking lot, it ultimately could be found liable for 3rd party criminal acts.

While these cases are difficult to prove, businesses and property owners should bear in mind that they can be found liable for failure to control the wrongful acts of 3rd parties on their property. If you have a premises liability question or issue and would like to discuss it with an attorney, please contact any of Ericksen Arbuthnot’s offices.