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File 11/15/19 ; Supreme Court publication order 3/11/20

SUPERIOR COURT OF THE STATE OF CALIFORNIA,

COUNTY OF YOLO

DHI CHERRY GLEN ASSOCIATES , L

. P

. ,

Plaintiff and Respondent

,

vs.

HEATHER GUTIERREZ

,

Defendant and Appellant

. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV UD 18

- 1993

DEC ISION

Defendant Heather Gutierrez appe al ed from t he judgment entered against her in the

above

- referenced matter . F inding an error, we REVERSE

.

FACTUAL AND PROCEDURAL BACKG ROUND

On or about O c tober 1, 2 014, appellant Heather G utierrez entered into a written

agreement with respondent DHI Glen Associates , LP, to rent the real property located at 762 W.
Lincoln Avenue, # 9, Woodland, CA 95695 ( “ premises ” ) for 12 months for $30.00 a month.
( Form C om plaint

, ¶ 6 )

. Appellant ’ s tenancy is subsidized by the United St a t es Department of
Housing and Urban Develo pm ent (HUD). (See Model Lease for Subsidized Programs, attached

to complaint as Exhibit 1.) Her tenancy is funded under the Section 8 Project

- B a se d Assistance
Program and the Section 8 Project

- Based Assistance Pro g r am, State Agency Financed

. (42- 2

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U

. S.C. § 1 43 7f .) The rent in subsidized housing can change during the term of the tenancy a s the

rent is bas ed upon income amon g other fa ctors

. A s of Oc tober 2018, t he tenant ’ s port ion of the rent had increase d to $259. 00 . ( Form

C om plaint

, ¶ 6

. ) O n October 9, 20 1 8

, appellant was served with a 10

- d ay notice to pay rent or
quit (“notice”) by posting and mailing a c opy to appellant. The notice is attached to th e

c omplaint as Exhibit 2. ( Id

. , at ¶ 7.) The notice ex pired at the end of the day on October 23,

2018 and inc l uded an election of forfeiture . ( I bi d

. ) The amount of rent due stated in the no tice
was $258.00. ( Id

. , at ¶ 9.)

On October 30, 201 8

, respondent file d a complaint for unlaw ful detainer against

a ppellant. Respon dent alleged that appellant was wrongfully in poss ession of the pre mises. ( Id

. , ¶ 3.)

On No vember 13, 2018, appell ant answered the complaint. S he alleged that : (1) before
the notice to pay o r quit expired, she offered the rent due, but plaintiff would not accept it ; (2)

th e unlaw ful detainer ac tion wa s filed prior to the expiration of the notice; and (3) the notice

attached to the com plaint was insufficient since it d id not include V iolence A ga inst W omen A ct

notification required 24 Code of Federal R egulations section 5.2005, subdivision (a)(2)( iii)

. ( Answer, ¶ 3.c., Attachment 3k.)

O n November 28, 201 8 , appellant filed a motion for summary judgment ( “ MSJ ” )

. Respondent filed an oppo sition. Appellan t filed a reply. A fter oral ar g u ment on December 11,

201 8

, Judge Warr iner denied the MS J and p ro cee ded with the trial. At tria l, Judge Warriner

found in favor of res pondent and directed respondent ’ s counsel to prepare a statement of

decision. The Honor a ble Judge Maguire signed the Statement of Decision for Judge Warriner on
January 23, 2019.

On Jan uary 28, 2019, appe lla nt H e ather Gutierrez filed this timely appeal.
According to appellant ’s statement on app eal , the following evidence was adduced at t he

court trial : Testimony of Defendant H e ather G u tierrez :

1. Defendant called d efendant Heather Gut ier rez.- 3

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2. Defe ndan t testified that she had live d at the p roperty for 6 years and live s there
presently wi th her h usband and 2 chil dre n.

3. She testi fied that she did not pay rent on time in October 2018 because she lost her
job.

4. She testi fied that she wo rked as a p er s onal caregiver.

5. She t estified that she lost her job bec a use she had to attend s o many court

appearances for obtai n i ng a restraining order against her ex

- partner and for c ustody
hearings.

6. She testified that she i s a vict im of domestic viole nc e.

7. J u dg e W arr i ner asked d efend a n t i f there were mutual restraining orders. Def endant
said yes. Judge Warriner as ked if d efenda n t and h er son ’ s father shared custody.

D efendant said no, she has full legal custody . He r son ’ s father has visitat io n for 3

hours ev ery two weeks. Defenda n t testified that th e y met with a mediator twi ce and
they return to c ourt in Janu ary regarding visitation

. He does not pay child support.

Counsel for d efen dant ask ed Judge Warriner to take judicial notice of th e other Yolo
Superior Co urt cases between d efendant and Robert Cutts and Judge Warriner did.

8. Defendant t estified tha t she g ave a letter to Jaime Powell (Defend ant ’ s Exhibit A)
dated September 28, 2 018 that stated that she lost her job. Pl a intiff ’ s c ounsel
objected to t he admi ssi on o f the exhibit into eviden ce on the g rou nds that it was perjury but Judge Warriner ove rruled the objection and admitted the do c u me n t as

Exhibit A.

9. Plaintiff ’ s cou nsel examined M s. Gutierrez.

10. S he testified t ha t she lost her job on Sept ember 27, 2018

. Sh e le arned that she lost
her job by phone when her employer cal led her and said she was not on the calendar.

11. She test ified that she lost her job for missing work to attend court.

Testi mony of Jaime P ow el l:

1. Plaintiff called Jaime Powell.- 4

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2. Plaintiff ’ s c oun s el showed Ms. Powell Plain tiff ’ s Exhibit 1, the lease agre ement, which

she identified as Ms. Gutierrez ’ lease. Exhibit 1 was offered into evidence.

3. Ms. Gutie r

rez ’ cou n sel did not object to its entry into evidence.

4. She testified that she is man ager of Ch erry Glen Apartm e n t s and the agent for the

ow ne r.

5. She test ified that she served Heather Gutierrez with the 10

- day Notice to Pay Rent
(Plai n t iff ’ s Exh ibit 2).

6. She authen ti ca ted the 10

- Day Notice that she signed and attached to the compl ai n t

.
7 . Ms. Gutierr ez ’ counsel did not object t o its entry into evidence.

8. Ms. Gu tierrez ’ counsel examined Ms. Powell.

9. She testified that the premi ses are Project

- Based S ection 8 Housin g.

The Court found

, as p ro vided in its statement o f decision

, th at t he 10

- day n otice to pay

re nt or quit c onformed to the strict requirement s provided in Code of Civil Procedure section
1161 and pro vided the bases f or it s finding in favor of respondent

. The statement of decision

states:

The Honorable Thomas E. Warri n e r pre siding, having considered

argument of c ounsel

, as well as oral and documentary evidence, at trial on De cember 10, 201 8 in this ma tter, finds as follows;

1. Plaintiff is a Project

- Based Section 8 Hou s ing p rovider. 2. Plai n tiff ’ s notice to pay rent or quit a c cura tely st ated the rent due and includ ed t he following: description of the property, statement of b reach (amount owing), unequivocal demand for payment, pay ment details, date of tenancy will end if payment not tendered , and the right to request a heari ng

. 24 CR § 88 0.607; C.C.P. § 11 61(2)

. 3. Plainti ff ’ s notice to pay rent or quit w a s properly served by
pos ting and mailing the notice on O ctobe r 9, 2018. 4. The De fendant was required to pay the delinquent amount of (Two Hundre d Fifty

- Ei ght dollars ($258.00) wi th i n 10 days f ro m the d a te of se rvice of the n otice. The operative lease does
not re quire a de mand period longer than 10 days. 5. The Defe ndant did not pay the amount stated in the notice and /or in the form required by the n otice, prior to the notice expirin g o n Oc tober 2 3, 2018. The Defe n d a nt did not requ est a meeting prior to October 23

, 2018.- 5

- 6. Notice s to pay rent are not premised on an ac t of d o mestic vio lence, dating violence, sexual assault, or stalking. Accordingly, no Viol ence Against Wo m a n (sic) Act no t ices are

re quired to be serve d with notices to pay rent. 24 C FR § 5.2005 (d)(2).

I T IS ORDERED, ADJUDGED, AND DECREED THAT:

1. Plainti ff i s entitled t o immediate judgment for po ssession of the prem ises commonly known as 762 W. Lincoln Avenue, #9, Woodla n d, CA 95695, Yo lo County. A w rit shall issu e forthwith. 2. The judgment for possession applies to all occupants, both named and unnamed

, as a prejudgment clai m to right of possession was filed and served but not returned. 3. The re ntal agreement

/ lease is cance l ed /for feited

. 4. Plaintiff is ent itled to a jud gment for money a ga in s t Defendant H e ather Gutierrez, calculated as follows: 5. P ri ncipal

- $ 258.00; Holdover

- $353.83; Court costs

- $340.00 for a total of $951.83.

O n June 12, 2019, t he court granted app ellant ’ s r eque st for judicial notice of E xhibit 1:

HU D , Notice H 2017

- 05 Vi olence Against Wo men Act (VAWA) Reauthorization Act of 2013

-
A dditi onal Guida nce for Mu ltifam ily Owners and M anagement Agents (June 3 0, 2017).
The court certified the entirety of the court ’ s file as the s ettled statement on appeal.

A ppellant filed an opening brief. Respondent filed a respondent’s brief. Appellant filed
a Reply br ief.

DISCUSSION

A. S t andard of Review

T he issue pre sented on appeal is : W hether the trial co urt made an error in th e la w w hen it

found : “ N otice s to pay rent are not premised on an ac t of d o mestic vio lence, dating violence,
sexual assault, or stalking. Accordingly, no Viol ence Against Wo m a n (sic) Act no tices are
required to be served with notices to pay rent. 24 C FR § 5.20 05 (d)(2). ” (Statem ent of Decisio n, ¶ 6.)

Th e trial court ’ s ground for appeal presents an issue of statutory interpretation. The
standard for review of issues of statutory interpretation is d e novo. ( People ex rel. Lockyer v.- 6

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Shamrock Foods, Co. (20 00 ) 24 Cal.4 th 415, 432 .) Under a de novo standard of review, the

Court is not bou nd by the trial court ’ s statutory interpretation. ( Id.)

W hen determining the meaning of a statute, the court must first lo o k to the words

“ because they generally pro vide th e mo st reliable indica t o r of legislat ive intent

. (citation

omitt ed )

. . . If there is no ambiguity in the language, we pres ume the Legislature me ant what it

said, and the plain mea n i ng of the stat ue gover ns. ” ( Murphy v. Kenneth Cole Productions (2 007)

40 Cal. 4 th 1094, 1103.) “ In reading st atutes, we are mindful that words are to be g iven t heir
pl ain and commonsense mean ing. ” ( I bi d .) “ Only when the statute ’ s language is ambiguous or
susceptible to m ore than one reasonable interpretation may the court t urn t o ex tri n s i c aids to

ass ist in interpr etation .” ( I bi d .)

B. Fai lure to provide a legally sufficient n otice is a complete defense to an

un l a w ful detainer.

“Unlawful detaine r is a unique body of law an d its procedures are entirely separate from
the proced ures pe rtai n i ng to civil act ions generally .” ( Lo sor ni o v. Motta (1998) 67 Cal.App.4th

110, 115 .) “ Sections 1159 through 1179a comprise what is commonly known as the Unlawful

Detainer Act; the statutes are broad in scope and available to bot h lessors and lessees who have

suffe red certai n wr o ngs com mitted by the other.” ( Losornio v. Motta, supra, at p. 113 .) Strict
compliance with the s tatutory notice requireme n t s is a pr erequisite to filing a n unlawful detainer

act ion. ( Lamey v. Masciotra (1969) 273 Cal.A p p. 2d. 709, 713 .) “ Under Cal iforn ia stat u tor y law

a te nant is entitled to a 3

- day notice to pay rent or quit which may be en forced by summary legal

p roceedings (Code Civ. Proc., § 1161) but this notice is vali d an d enforceable on ly if the lessor
strictly complies with the s p e cif i c a lly de s c r i bed noti ce conditi ons. (Code C iv. Proc., § 1162.) ”
( I bi d

. )

A copy of the notice o f evic tion m u s t be attached to the c omplaint. (Code Civ. P roc., §

1166, subd. (d)(1)(A).) A c o mpl aint , that does not comply with the notice requirements, fails t o

state a cause of a ction for unlawful detainer and the court lacks both personal and subject matter
juris diction. ( Kwok v. Bergre n (1982) 130 Cal.Ap p.3d 596, 599

- 600 .)- 7

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Appellant contends that the trial court incorrectly found that respond e n t strictly complied

with the noti ce requireme nts set forth in Code of Civil P rocedure section 1161 and 24 Code of

Federal R eg ulations part 5.2005 ( a)(2)(iii)

, since the 10

- day notice to pay rent or quit did not

include the st atutorily requi r ed Notice of Occupancy Right s un der the Viol ence A g ains t Women

Act, and certification form ( “ VAWA notices ” )

.
Res pondent contends that the trial cour t correctly found that the no tice s erved in this case

was sufficient un der Code of Civil P rocedu re section 1161 and 24 Code of Federal R eg ulat ions

part 5.2005 since

, 24 Code of Fed eral Re gulations part 5.2005 (d)(2) does not r e quire that

VAWA notices be served with a not ice to pay rent or quit

. In determining wh e ther the VAWA notices se t for forth in 24 C ode of F ederal

R egulati ons, part 5 .200 5 ar e r equire d to be served with a 10

- day notice to pay rent o r quit, we

must lo ok to the language of the stat ute.

C. The trial court erred in findin g that VA WA n otices were not required to be served with notice to pay ren t or quit since the notice wa s not p rem ised on d omestic violence.

24 C ode of F ederal R egulations part 5 .2005 states in pertinent part:

(a) Notification of occupancy rights under VAWA, and certification form.

(1) A covered housing provider must provide to each of its applicants and to each of its tenants th e no ti ce o f occupa n cy rights and certification form as described in this section:

(i) A “ Notice of Occupancy Rights under the Viol ence A g ains t Women Act

, ” as prescri bed and in accordance with directions provided by HUD , that explains the VAWA prote ctions unde r this sub p art, in cluding the right to confidentiali ty, and a ny l imitations on those protections (emphasis added ); and

(ii) A certification for m , in a form approved by HUD, to be

com pleted by the victim to document an incident of domestic violence

. . .
(2 ) The n otic e requi red by paragraph (a)(1)(i) of this section and certification form required by paragraph ( a)( 1)(ii) of this- 8

- section must be prov i ded to an applic ant or tenant no later than at each of the follow ing times :

. . .
(iii) With any notifi cati on o f evictio n or notifica tio n of terminat ion of assistance

. . . (d) Limitations of VAWA protections.

. . . ( 2) Not hing in this sectio n limits any available authority of a covered ho using provider to evict or terminate assistance to a tenant for any violation n o t pr emised on an a ct of domestic violence, dating violence, sexual ass ault, or staking t hat is in question against the tenan t or an

a ffiliated individual of the tenant. However, the covered hosing provide r must not subject the tenant, who is or has been a vic tim of dom estic violence, dating violence, sexual ass a ult of stalking, or is affili ated with an indiv idual who is or ha s been a victim of domestic violence

, dating violence, sexual assault or staking , to a more deman d in g standar d than other tenants in d e te rmin in g whether to evict or terminate assistance.

The landlord of a HUD property must serve a 10

- day no tice of e viction (instead of a 3

- day notice to pay rent or quit) on a tenant prio r to initiating a legal action for unlawful det a i ner.
( Code Civ. P r o c., § 1161 ; F o rm Complaint, Exh s

. 1 & 2

. ) A 10

- day notice to pay rent , like a 3

- day notice to pay rent or quit

, i s a notice of eviction under Code of C ivil P rocedure section 1161

and 24 Code of Fed eral R egulations part 5.2005

. As a n otice of evi c tion, t he 10

- day notice to

pay rent or quit served by a covered h ousing provi der m ust include the VAWA notices. ( 2 4

C .F.R. § 5.2 005 (a)(2)(iii) (2016)

. ) The n otice served on appellant in this case did not include the

VAWA notices as req uired by law an d t h erefore , cannot support an action for unlawful det ainer.
(Code Civ. Proc., § 1161, 2 4 C

. F

. R ., § 5.2005 (a)(2)(iii) (2016)

, Form Co mplaint , Exh s. 1 & 2.)

24 Code of Federal R egulations part 5 .2005 ( d)(2) doe s n o t save respond ent ’ s unlawful

de tainer action fr om the strict notice requirements provided by s tat ute

. 24 Code of Federal

R egulations part 5 .2005 (d)(2) does not refer to or abridge the notice require ment contained in 24

Code of Federal R eg ulat i ons, part 5.2005 (a)(2)(iii)

. All s ubdivisi on (d)(2) states is that the

section do es not prevent or l imit a covered housing provider ’ s ability to evict a tenant o r

terminate a tena nt ’ s assistance not premised on an acti on of domestic viol e nce, etc. (24 C.F.R. §

5.2005 (d)(2) (2016) .)- 9

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The plain and commonsense meaning of the st atutory language contained in 2 4 Code of

Federal R e gulations part 5.2005 requires VAWA notices to be served with any notice of

termination

. There is no lan gu a ge in the st atut e that would sup p ort a meaning that the VAWA

notice s only ne ed to be served with notices of term in ation that are premise d on d omestic

violence. (24 C.F.R. § 5.2 005 (2016) .) R espondent w as required to serve the VAWA notices on appellant prio r to fil ing a com p l ai nt for unlawful detainer aga in s t appell ant.

T he court ’ s finding : “ 6. N otices to pay rent are not premised on an act of domestic

violenc e, dating violence, sexual ass ault, or st alking. Accordingly, no Violence Against Woman
(sic) Act noti ces are req u ire d to be s erved with notices to pay rent . 2 4 C FR § 5.2005 (d)(2)

. ” was

in error

. The court ’ s error of law i s not h armless.

Where a p arty shows “ a reasonable probability that in the absence of the error, a resu lt
more favorable to [it] would h a v e been reac hed., the erro r is not ha rm less . ( Diaz v. Ca rca mo (2011) 51 Cal.4 th 1148, 1 161 , citing Soule v. General Motors Co rp . (1994) 8 Cal.4 th 548, 57 4.)

In this case, absen t the error, the court would have found th at respondent did not comply with the

notice req uirements fo r a n unlawful detai ner acti on an d wo uld have found in favor of appellant

.
A finding in favor of appellant wou ld allow her to stay in her ho me.

J udgment is REVERSED , and Judgment is entered for Defendant

.
Dat ed: November ___, 2019

__________________________________________ So nia Corte s J udge of the Appellate Divisio n

Dated No vember ___, 2019

__________________________________________ T om M. Dyer Judge of the Appellate Division

Da ted N ovember __

_ , 2019

_________ ________________________________ _

David W. Reed Judge of the Appellate DivisionDHI CHERRY GLEN V. HEATHER GUTIERREZ

S UPERIOR COURT OF THE STATE OF CALIFORNIA

C OUNTY OF YOLO

THOMAS WARRINER T rial Court Judge

C ounsel for Appellant: Katherine W. Wardrip Legal Services of Northern California 619 North Street Woodland, CA 95695

Counsel for Res p ondent: Monika P. Deka Kimball, Tirey & St. John L LP 2300 Clayton Road, Suite 1350 Concord, CA 94520