Filed 6/29/21 510PacificAve v. Weiss CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

510PACIFICAVE,

Plaintiff and Respondent,

v.

AMY REBECCA WEISS,

Defendant and Appellant.

 B304369

 (Los Angeles County

 Super. Ct. No. BC694882)

APPEAL from a judgment of the Superior Court for Los Angeles 

County, Richard E. Rico, Judge. Affirmed.

Tabatabai & Miyamoto and Farzad Tabatabai for Defendant and 

Appellant.

Robert Miller for Plaintiff and Respondent. 
2

Defendant Amy Rebecca Weiss, a tenant in an apartment building 

owned by plaintiff 510PacificAve, the fictitious name for Lindeva Living 

Trust dated 8/20/03, Kim W. Lu, Trustee (Owner), appeals from the

judgment in a declaratory relief action filed by Owner. Weiss contends 

the trial court erred by denying her post-trial request for statutory

damages under the City of Los Angeles Rent Stabilization Ordinance

(L.A. Mun. Code,1 ch. XV, §§ 151.00 et seq.) (LARSO) and by limiting 

her to $500 in attorney fees under a provision of her lease that was 

unilaterally amended by Owner more than a year before the present 

action was filed. 

We conclude the trial court did not err in denying Weiss’s request 

for statutory damages because she did not raise the issue of such 

damages (the determination of which requires the presentation of 

evidence by the parties and fact-finding by the trial court) until after 

the trial had been completed and the final statement of decision had 

been issued. We also conclude the trial court did not err in finding, 

based upon the record before it at the time it heard Weiss’s motion for 

attorney fees, that the amount of recoverable fees was limited by the 

amended attorney fee provision of the lease, and we reject Weiss’s 

arguments that the amended provision was an illegal contract. 

Accordingly, we affirm the judgment.

1 Further undesignated statutory references are to chapter XV of the 

Los Angeles Municipal Code.
3

BACKGROUND

Weiss entered into a lease agreement for a unit in the apartment 

building at issue on December 29, 2013, and has occupied that unit 

since that time. Owner did not own the building at the time Weiss 

entered into the lease; Owner obtained title to the building in June 

2014. The building, which is located in Venice, California, is subject to 

LARSO. 

The lease includes the following provisions that are relevant to 

this appeal:

• Paragraph 1 provides that the lease would continue as a 

leasehold until December 31, 2014, and would thereafter 

become a month-to-month tenancy. 

• Paragraph 6 provides that only Weiss could occupy the unit, 

and that it would be a breach of the agreement for guests to 

stay in the unit for 14 or more days cumulatively during any 

12-month period without the owner’s written consent. It also 

provides that Weiss would be required to pay additional rent 

“at the rate of $100.00 per month or 25% (or the amount 

allowed under rent control) of the current monthly rent, 

whichever amount is greater, for the period of time that each 

additional guest in excess of the above named shall occupy the 

premises.” 

• Paragraph 15 provides that after the expiration of the lease 

period (i.e., Dec. 31, 2014), the terms and conditions of the lease 
4

would be subject to change by the owner upon 30 days written 

notice. 

• Paragraph 16 reiterates that the agreement would be

automatically renewed from month-to-month after the 

expiration of the leasing period. 

• Paragraph 23, before it was amended, provided that the 

prevailing party in any legal action or proceeding brought by 

either party was entitled to be reimbursed for all reasonable 

attorney fees and costs, but that the parties waived their right 

to a jury trial in order to minimize those fees. 

• Paragraph 31 incorporates the “House Rules” as part of the 

agreement. The House Rules reiterate that no persons other 

than those named in the original rental agreement are 

permitted to occupy the premises without prior written consent 

of the owner. 

On January 27, 2017, Owner served Weiss with a notice of change 

of terms of tenancy, informing her that, 30 days after service of the 

notice, paragraph 23 of the lease (the attorney fees provision) would be

deleted and replaced with a new paragraph 23. The new paragraph 23 

provides: “If any legal action or proceeding is brought by Owner or 

Renter related to this Agreement, the prevailing party shall be entitled 

to recover attorneys fees not to exceed $500.00.” The paragraph no 

longer includes a waiver of the parties’ right to a jury trial.

In July 2017, Owner filed a lawsuit (the first action or lawsuit) 

against Weiss, Weiss’s mother (who had guaranteed the lease
5

agreement), and Weiss’s then-boyfriend (who was sued as “John Doe”). 

The details and allegations in the first action are not relevant to this 

case, although a short discussion is necessary for context. Owner’s 

complaint asserted claims based upon allegations that Weiss and her 

boyfriend damaged two cameras Owner had installed in common areas 

of the building. (510PacificAve v. Superior Court (July 27, 2018, 

B289549) [nonpub. opn.], at pp. 2-3 (510PacificAve I).)2 Weiss filed a 

cross-complaint against Kim W. Lu (in her individual capacity and in 

her capacity as trustee of Owner) in January 2018, asserting claims 

based upon allegations that Lu had engaged in serial harassment of 

Weiss. (Id. at pp. 3-4.) 

On February 12, 2018, Owner served Weiss (through her attorney) 

a notice of change of terms of tenancy stating: “It has come to the 

attention of the owner that there is an unauthorized occupant of 

[Weiss’s unit] by the name of Filip Osowski [i.e., Weiss’s thenboyfriend].” Invoking paragraph 6 of the lease, Owner gave notice that, 

beginning 60 days from the date of service of the notice, the rent would 

2 Our opinion in 510PacificAve I arose from a writ petition filed by 

Owner. When Owner filed the present action, Weiss filed a notice of related 

case and the present action was assigned to the judge handling the first 

action. Owner filed a challenge to that judge in the present action, but the 

judge denied it, finding that the present action was a continuation of the first 

action. (510PacificAve I, supra, at pp. 6-7.) We granted Owner’s writ 

petition, finding that the legal and factual issues raised in the present action 

are distinct from the legal and factual issues raised in the first action, and 

that “[t]he resolution of one will have no bearing on the resolution of the 

other.” (Id. at p. 10.) On remand, Owner’s peremptory challenge was 

accepted, the two cases were unrelated, and the present case was reassigned 

back to the originally-assigned judge. 
6

increase by 25 percent. Weiss immediately disputed the change of 

terms. 

Nine days later, Owner filed the present lawsuit seeking 

declaratory relief regarding the applicability of paragraph 6. The 

complaint described the controversy as follows: “Owner contends that 

the rent increase alleged herein is governed by the terms of the lease 

and written agreement of the parties, and that the Tenant’s refusal to 

pay the increase is a breach of the lease, which increase is not governed 

or restricted by any law or ordinance. Owner is informed and believes 

and based on such information and belief alleges that the Tenant 

contends that the said rental increase is governed and/or restricted by a 

city ordinance and that she may refuse to pay the rent increase without 

breaching her lease.” The complaint prayed for a judgment (1) 

declaring that Weiss is subject to the notice of change of terms 

regarding the rent increase and (2) “[f]or such other relief as in the 

premises are proper”; Owner did not ask for attorney fees. 

In her answer to the complaint, Weiss admitted there was a 

controversy between the parties regarding the notice of rent increase, 

but denied it was necessary for the court to determine and declare the 

rights of the parties. The answer also asserted several affirmative 

defenses and prayed that (1) Owner take nothing in the lawsuit; (2) 

Weiss recover her costs; (3) Weiss receive all of her attorney fees 

incurred in her defense; and (4) Weiss “receives such other and further 
7

relief as the Court feels is just and proper.”3 Weiss did not file a crosscomplaint.

A bench trial was conducted by briefs, declarations, stipulated 

facts, and a small number of exhibits (all of which were authenticated 

by stipulation, and most were admitted by stipulation). Owner’s trial 

brief described the relief being sought as a “judicial determination that 

a narrow 2011 amendment to the Los Angeles Municipal Code 

regulating an ‘additional tenant’ cannot supersede the parties’ initial 

written agreement, is a violation of state law and unconstitutionally 

vague taking and infringement on the freedom of contract.” Owner 

noted that “[i]t is only after a judicial declaration of rights and duties 

here that [Owner] will file a separate action to enforce the terms of the 

agreement at which time and place the parties can fully probe the 

nature and extent of the unauthorized occupancy of the subject unit.” 

In her trial brief, Weiss argued that LARSO supersedes the 

nonconforming terms of the lease agreement, and the Owner’s attempt 

to raise her rent violates LARSO for several reasons, both factual and 

legal. Weiss concluded her trial brief by requesting that the trial court 

issue a declaratory judgment declaring that (1) LARSO supersedes 

paragraph 6 of the lease; (2) LARSO does not allow a rent increase of 25 

percent, and does not allow an increase at all unless an unauthorized 

3 Owner’s demurrer to Weiss’s original answer was sustained with leave 

to amend, and Weiss filed an amended answer. The only difference between 

the original and amended answers is that the amended answer includes 

factual allegations to support Weiss’s affirmative defenses.
8

guest has occupied the unit for 30 consecutive days; (3) Owner’s attempt 

to increase the rent is an attempted pretext eviction; and (4) paragraph 

6 of the lease does not authorize a permanent 25 percent increase in 

Weiss’s rent. Weiss requested no other relief in her trial brief. 

Owner filed an opposition to Weiss’s trial brief, in which Owner 

reiterated that “[t]he only question to be resolved” is whether “the 

initial written agreement of [Weiss] with [Owner’s] predecessor 

govern[s] the specific amounts to be charged for additional 

unauthorized occupants.” Weiss’s opposition to Owner’s trial brief 

challenged Owner’s interpretation of the law, and for the first time 

argued that Owner’s unilateral amendment of the lease to cap the 

recoverable attorney fees also violated LARSO. She asked the court to 

find the amendment is void and to grant her reasonable attorney fees

(under the original attorney fee provision of lease) if she were to be the 

prevailing party. 

The trial court issued a detailed tentative decision in which the 

court identified the “sole issue” presented by the complaint as “whether 

the terms of the lease agreement as altered by Landlord on February 

12, 2018 are enforceable against Tenant.” The court reiterated, “To be 

clear, the plaintiff-Landlord seeks a legal determination that Tenant is 

‘subject to’ the rent increase, not a factual determination that the rent 

increase was properly applied.” After a full discussion of the applicable 

law, the court concluded: “Because the Notice of Change of Terms 

purports to increase rent in excess of the limits of LARSO section 
9

151.06(G), the Notice is unenforceable.[4] Paragraph 6 of the Lease 

Agreement is valid and enforceable to the extent that it allows rent 

increases for additional residents that comport with both the monetary 

limits and the thirty-consecutive-days-of-residence requirements of 

section 151.06(G). Paragraph 6 is invalid and unenforceable to the 

extent that it allows rent increases that do not comport with section 

151.06(G).” 

Both parties filed objections to the tentative decision. Weiss 

objected primarily to a portion of the tentative decision in which the 

court addressed Weiss’s requests for relief in her trial brief; specifically, 

she objected to the section with the subheading entitled “The court will 

not grant further relief.”

5 Weiss argued that she was entitled to 

4 Section 151.06.G provides, in relevant part: “For a rental unit which 

has an additional tenant joining the occupants of the rental unit thereby 

resulting in an increase in the number of tenants existing at the inception of 

the tenancy: [¶] (a) The landlord may increase the maximum rent or 

maximum adjusted rent by an amount not to exceed 10% for each additional 

tenant that joins the occupants of the rental unit, [subject to certain 

exceptions not relevant here]. [¶] (b) The rental unit shall not be eligible for 

a rent increase until the additional tenant has maintained residence in the 

rental unit for a minimum of thirty consecutive days.” 

5 Under that subheading, the trial court explained it could not declare 

more than it had because “[t]o declare anything further would require the 

court to further interpret both the lease agreement and LARSO,” and to 

make various factual findings and calculations. The court concluded, “These 

determinations are not appropriate given the limited scope of the declaratory 

relief sought in this action. As discussed above, this is a declaratory action 

that seeks a narrow legal determination. That determination has been 

rendered. The court will not venture into these factual issues absent a more 

fully developed factual record and a mechanism to do so.” 
10

“further relief” because she requested attorney fees in her answer to the 

complaint. In making this objection Weiss asserted for the first time 

that she was entitled to reasonable attorney fees under LARSO, citing 

section 151.10.A.6 (She also argued she was entitled to her reasonable 

attorney fees under the original attorney fee provision of the lease 

agreement.) Along with her objections, Weiss filed the declaration of 

her attorney setting forth the amount of fees she had incurred, a total of 

more than $71,000. 

After considering the parties’ objections, the trial court issued its 

final statement of decision. The final statement of decision was a 

slightly modified version of the tentative decision. One of the

modifications addressed Weiss’s objection regarding the court’s 

statement that it would not grant further relief. The court added a 

footnote in which it explained that it edited the objected-to subheading 

(which now stated “The court will not grant further declaratory relief”) 

“to clarify that nothing about this Statement of Decision makes any 

finding with regard to attorney fees, nor does it prevent [Weiss] from 

6 Section 151.10.A. provides: “Any person who demands, accepts or 

retains any payment of rent in excess of the maximum rent or maximum 

adjusted rent in violation of the provisions of this chapter, or any regulations 

or orders promulgated hereunder, shall be liable in a civil action to the 

person from whom such payment is demanded, accepted or retained for 

damages of three times the amount by which the payment or payments 

demanded, accepted or retained exceed the maximum rent or maximum 

adjusted rent which could be lawfully demanded, accepted or retained 

together with reasonable attorneys’ fees and costs as determined by the 

court.”
11

filing a motion for attorney fees.” The court explained it declined to rule 

on Weiss’s arguments regarding attorney fees raised in her objections to 

the tentative decision because Owner did not have an opportunity to 

respond.

Six weeks later, Weiss filed a motion for an award of statutory 

damages under section 151.10.A. and attorney fees under both section 

151.10.A. and the original attorney fee provision in the lease 

agreement; she did not address Owner’s amendment of the attorney fee 

provision. Owner opposed the request for statutory damages, arguing 

that Weiss waived any such claim by failing to assert it in any prior 

pleading or trial brief, and in any event, section 151.10.A. did not apply 

under the facts of the case. Owner also opposed the request for attorney 

fees on the ground that the amendment to the paragraph 23 of the lease 

caps fees at $500, but even if it did not, the requested fees were 

unreasonable. In her reply, Weiss argued that Owner’s amendment of 

paragraph 23 was invalid under section 151.09 of LARSO because 

Owner did not obtain her consent to the change of terms.

The trial court denied Weiss’s request for statutory damages on 

the ground that section 151.10.A. was inapplicable under the 

circumstances because Weiss never filed a cross-complaint or otherwise 

pled a claim for statutory damages. The court observed, “If Tenant 

wants statutory damages under LARSO section 151.10.A, Tenant must 

seek a trial of that issue so that a developed factual record can be 

presented. Tenant may not use a post-trial motion to present factual 

issues to the court that need to be tried.” And, because it found that 

section 151.10.A. was inapplicable, the court also denied Weiss’s request 
12

for attorney fees under that section. Addressing her request for fees 

under the lease agreement, the court found that Owner’s amendment of 

the attorney fee provision was valid because section 151.09 did not 

apply to that amendment,

7 and therefore Weiss’s recovery of attorney 

fees was limited to $500. On November 20, 2019, the court entered 

judgment setting forth its declarations (as stated in the conclusion of 

the statement of decision, quoted above) and awarding Weiss $500 in 

attorney fees and $709.05 in costs, for a total of $1,209.05. 

Weiss timely filed a motion to modify or vacate the judgment, for a 

further or new trial, or, in the alternative, to stay entry of judgment 

pending further proceedings in the first action. The motion asked the 

trial court to revisit its ruling limiting Weiss to $500 in attorney fees 

and denying her statutory damages, arguing that a new trial was 

warranted on five grounds: (1) there was insufficient evidence to 

support the court’s finding that the attorney fee provision of the lease 

agreement had properly been amended because (a) the notice of change 

of terms that purported to amend the attorney fee provision was not 

properly authenticated and (b) the presentation of evidence at trial was 

limited; (2) the applicability of the amended attorney fee provision

should be decided in the first lawsuit rather than in the present action; 

(3) the trial court lacked jurisdiction to rule on the attorney fee issue 

because that issue is pending in the first lawsuit; (4) the trial court 

improperly ruled on the applicability of section 150.10.A. without taking 

7 Section 151.09 regulates the grounds upon which a landlord may bring 

an action to recover possession of a rental unit.
13

evidence, thus depriving Weiss of a fair hearing; and (5) the trial court

made an error in law in determining that the amendment of the 

attorney fee provision of the lease was enforceable, because the 

amendment was illegal. In support of her motion, Weiss filed a 14-page 

declaration in which she recounted the various disputes she has had 

with Owner, accompanied by more than 60 pages of exhibits; she also 

submitted the declaration of her attorney recounting the conduct of the 

first action, which was accompanied by 700 pages of exhibits. 

The trial court denied Weiss’s motion. The court rejected Weiss’s

first argument regarding sufficiency of the evidence and the 

authentication of the notice of change of terms, observing that “the 

parties submitted a joint record and stipulated to the authenticity of all 

the documents therein,” including the notice of change of terms, and 

that Weiss had not previously raised the issue of authenticity in her 

motion for attorney fees. As to the sufficiency of the evidence, the court 

noted that it was Weiss who filed the motion for attorney fees, and 

there was nothing that prevented her from submitting any evidence she 

believed was necessary to establish that the amendment of the attorney 

fee provision was illegal or otherwise unenforceable.8 The court stated 

that it “considered the evidence that was submitted [on the attorney fee 

motion], and that evidence was sufficient to support a finding that the 

attorney fee provision modification was legal and enforceable.” 

8 For this same reason, the trial court found that Weiss’s fourth 

argument—that she was denied a fair hearing because she was not able to 

present evidence—to be “patently specious.” 
14

Addressing Weiss’s second and third arguments, the trial court 

found that the doctrines of judicial estoppel and waiver barred Weiss 

from asserting that the enforceability of the amendment to the attorney 

fee provision should be determined in the first lawsuit, or that the court 

did not have jurisdiction to make that determination due to the 

pendency of the first lawsuit. The court stated: “By asking this court to 

make a determination about the enforceability of the attorney fee 

provision modification, knowing that this issue was raised or could be 

raised in Case #1, [Weiss] consented to this court’s determination of the 

matter, and [Weiss] waived any future objections she might have had to 

such jurisdiction.”

Finally, the trial court concluded that none of Weiss’s arguments 

as to why the amendment of attorney fee provision was illegal had any 

merit. The court rejected Weiss’s assertion that Owner’s conduct in 

issuing the notice of change of terms was unlawful under Civil Code 

section 1940.2 because that statute, which makes a landlord’s 

harassment of a tenant illegal, did not apply to Owner’s conduct. The 

court also rejected Weiss’s assertion that Owner’s unilateral 

amendment of the attorney fee provision was against the public policy 

underlying LARSO, noting that to the extent LARSO prohibited 

properly-noticed unilateral changes of such provisions, it is pre-empted 

by Civil Code section 827, subdivision (a), which specifically allows such 

changes. The court declined to address Weiss’s assertion that Owner’s 

conduct constituted a pretext eviction, finding that Owner had not 

attempted to evict Weiss through the amendment to the attorney fee 

provision. 
15

The court entered its order denying Weiss’s motion on January 14, 

2020. Weiss served notice of entry of the order on February 17, 2020,

which attached a file-stamped copy of the order as entered, and filed her 

notice of appeal from the judgment (and order denying her motion for a 

new trial) the following day.9 Owner filed a notice of cross-appeal from 

the judgment two days later, but subsequently dismissed the crossappeal. 

DISCUSSION

On appeal, Weiss contends the trial court erred by failing to apply 

section 151.10.A., the LARSO penalty ordinance, to award her statutory 

damages. She also contends the court erred when it limited her 

9 Owner filed a motion in this court to dismiss Weiss’s appeal as 

untimely, which we denied without comment. Owner reasserts in the 

respondent’s brief that the notice of appeal was untimely, arguing that 

Weiss’s notice of appeal was filed more than 30 days after Owner served a 

“NOTICE OF RULING DENYING DEFENDANT WEISS’ MOTION TO 

CHANGE, MODIFY OR VACATE JUDGMENT, ETC.” Attached to the 

notice was a copy of the tentative ruling on the motion, which the notice 

indicated the trial court adopted as its order. While Owner is correct that 

rule 8.108 extends the time to file a notice of appeal from a judgment to 30 

days after service of the order denying a motion for a new trial or of a notice 

of entry of that order, Owner’s service of the notice of ruling did not start the 

30-day clock because it was not entitled “notice of entry” and it did not attach 

a copy of the order actually entered as the order of the court. (See Cal. Rules 

of Court, rule 8.108; Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 

399 [serving a notice of ruling of denial of motion to vacate the judgment does 

not satisfy rule 8.108, requiring a notice of entry].) Although the court 

adopted the tentative ruling as its order, before filing the order the court 

corrected the case number that appeared on the tentative ruling and crossed 

out the word “TENTATIVE” from its title.
16

attorney fees to $500 because the court’s ruling was based upon an 

illegal contract. Finally, she contends the court erred by denying her 

motion for a new trial because there was insufficient evidence to justify 

the court’s ruling on attorney fees. None of her contentions has merit.

A. Statutory Penalties

Section 151.10.A. provides, in relevant part: “Any person who 

demands . . . any payment of rent in excess of the maximum rent or 

maximum adjusted rent in violation of the provisions of this chapter, or 

any regulations or orders promulgated hereunder, shall be liable in a 

civil action to the person from whom such payment is demanded . . . for 

damages of three times the amount by which the payment or payments 

demanded . . . exceed the maximum rent or maximum adjusted rent 

which could be lawfully demanded . . . together with reasonable 

attorneys’ fees and costs as determined by the court.” 

Weiss argues that Owner “demanded” payment of increased rent, 

which increase the trial court found was unlawful under LARSO. 

Therefore, Weiss contends she was entitled as a matter of law to 

statutory damages under section 151.10.A. And, because the 

declaratory relief action was a “civil action,” she contends the trial court 

erred by denying her post-trial request for section 151.10.A. damages.

We have no quarrel with Weiss’s assertion that statutory damages 

under section 151.10.A. could be awarded to a defendant in a 

declaratory relief action, if appropriate. But the language and 

legislative history of section 151.10.A. require that the defendant make 
17

a claim for statutory damages in the lawsuit so that the landlord’s 

liability (if any) may be determined at trial. 

The language in section 151.10.A. that the landlord “shall be 

liable in a civil action [to the tenant] . . . for damages,” while somewhat 

ambiguous, reasonably can be understood to mean that a tenant may 

recover statutory damages only by alleging a claim for damages in a 

civil lawsuit. The ambiguity of that language is resolved, however, by 

reference to the legislative history of LARSO. 

When the first rent stabilization ordinance was passed, it provided 

that a landlord who demanded, accepted, received, or retained any 

payment of rent in excess of the maximum lawful rent under the 

ordinance was guilty of a misdemeanor punishable by a fine of not more 

than $500 or by imprisonment in the county jail for up to six months, or 

by both. (L.A. Ord. No. 151415, § 4.) That original ordinance expired 

by its own terms and was replaced by Ordinance No. 152120, which 

added chapter XV—LARSO—to the Municipal Code. 

LARSO was drafted by the Los Angeles City Council’s 

Government Operations Committee, with input from members of 

various divisions, departments, and offices of the City of Los Angeles. 

In a report10 presented to the City Council with the committee’s draft of 

10 After initially denying Weiss’s request for judicial notice of several 

documents she asserted constituted the legislative history of LARSO, we 

informed the parties that we were considering taking judicial notice of one of 

the documents from Weiss’s request: the Report of Government Operations 

Committee to the Council of the City of Los Angeles on proposed Rent 

Stabilization Ordinance, presented March 8, 1979. We invited the parties to 

submit information relevant to the propriety of taking judicial notice of the 

report and the tenor of that report. Both parties submitted briefing on this 
18

the proposed ordinance, the committee stated: “A basic problem 

confronting the Committee was whether or not to impose criminal 

sanctions for violation of the proposed ordinance.” (Report of 

Government Operations Committee to the Council of the City of Los 

Angeles on proposed Rent Stabilization Ordinance, presented March 8, 

1979, p. 2.) The committee explained there was “strong sentiment . . . 

to retain, as a deterrent, the misdemeanor provisions of the original 

rent regulation concept,” but there were concerns about the projected 

costs for additional staff in the City Attorney’s office and for an 

investigation unit. (Ibid.) In addition, the City Attorney expressed 

reservations about the legality of imposing fees to recover the costs of 

investigation and prosecution. However, the City Attorney “informed 

the Committee . . . that there is no constitutional requirement that a 

violation of a rent regulation measure be made a misdemeanor and that 

it could be made a civil offense. In that case, he indicated, a tenant 

could be authorized to sue for damages whenever unlawful amounts of 

rent were demanded, accepted or received, and to raise such violation as 

a defense in an unlawful detainer action brought by a landlord to 

recover possession of a unit for failure to pay rent. In view of these 

considerations, it was ultimately the decision of the Committee to 

eliminate criminal prosecution from the proposal and to provide only 

civil remedies.” (Ibid.) 

issue and, having considered that briefing, we take judicial notice of the 

report. 
19

In other words, section 151.10.A. was enacted to authorize a 

tenant “to sue for damages” if a landlord demanded, accepted, or 

received rent payments in excess of the amount allowed under LARSO. 

That is not what Weiss did here. She did not file a cross-complaint 

seeking statutory damages under section 151.10.A., nor did she ask for 

statutory damages in her trial briefs.11 In fact, she never raised section 

151.10.A. until she filed objections to the trial court’s tentative decision 

following trial, and even then raised the statute only with regard to 

attorney fees. Her first mention of statutory damages under section 

151.10.A. came six weeks after the trial court issued its final statement 

of decision, when she brought a post-trial motion seeking those damages 

and attorney fees. 

While Weiss concedes the legislative history demonstrates the

City Council “relied on tenants to file a civil lawsuit to recover” 

damages under section 151.10.A., she argues there is no reason to 

believe the Council intended that a tenant must file a separate lawsuit 

if there is an ongoing lawsuit. She asserts, in effect, that seeking 

statutory damages by means of a post-trial motion was appropriate 

because section 151.10.A. simply provides a formula to compute the 

11 We reject Weiss’s assertion that her prayer for attorney fees and “such 

other and further relief as the Court feels is just and proper” was sufficient to 

assert a claim for statutory damages under section 151.10.A. First, such a 

general “catch-all” request is insufficient to give notice to Owner—let alone 

the trial court—that Weiss would seek a determination on the applicability of 

a specific statutory damages provision. Second, and more importantly, Code 

of Civil Procedure section 431.30, subdivision (c) provides that “[a]ffirmative 

relief may not be claimed in the answer.”
20

damages and in this case no trial was necessary since all of the evidence 

needed to decide the issue was already part of the trial record. She is 

mistaken. 

Weiss ignores the fact that a landlord is not liable for damages 

unless the landlord “demands, accepts or retains any payment of rent in 

excess of the maximum rent” allowed under LARSO. We express no 

opinion whether under the facts of this case—Owner’s service on Weiss 

of a notice of the increase in rent in accordance with paragraph 6 of the 

lease agreement (to take effect in 60 days), immediately followed by 

Owner’s filing of a declaratory relief action seeking a declaration that 

paragraph 6 was enforceable despite the LARSO—Owner “demanded” 

rent in excess of that allowed, or the time period (if any) during which 

such a demand was made. But those are critical issues that must be 

determined, and Owner was denied an opportunity to present evidence 

at trial on those issues because Weiss waited until after the trial was 

over to request statutory damages. Therefore, we find the trial court 

did not err by denying Weiss’s post-trial motion for statutory damages 

under section 151.10.A.

B. Enforceability of Amended Attorney Fee Provision

Weiss argues the trial court erred by finding that Owner’s notice 

of change of terms amending the attorney fee provision was enforceable 

and capped her recoverable attorney fees at $500, because the 

amendment is an illegal contract. She contends the amendment is 

illegal for five reasons: (1) it violates Civil Code section 1940.2 because

it is part of scheme by Owner and Owner’s attorney to evict Weiss; (2) it 
21

violates the public policy of LARSO because it is a pretext eviction; (3) it

violates the public policy inherent in the covenant of good faith and fair 

dealing; (4) it is an unlawful penalty because it amounts to a forfeiture

of the attorney fees she incurred; and (5) it is unconscionable.

Weiss did not make any of these arguments in her motion for 

attorney fees, even after Owner cited to the $500 cap in opposition to 

the motion. The only argument she raised—in her reply brief—was 

that the amendment was invalid under section 151.09, which argument 

the trial court correctly rejected. The first three arguments Weiss 

makes on appeal she raised for the first time in her motion for a new 

trial, arguing (as she does here) that the illegality of a contract may be 

raised at any time, even after judgment has been entered. (Citing 

Lewis & Queen v. N.M. Ball Sons (1957) 48 Cal.2d 141, 148 (Lewis & 

Queen).) The last two arguments are asserted for the first time in this 

appeal. 

It is arguable that Weiss forfeited the issue of illegality by failing 

to raise it in her motion for attorney fees. (See Fomco, Inc. v. Joe 

Maggio, Inc. (1961) 55 Cal.2d 162, 166 [finding that none of the decided 

cases hold that a court must grant a motion for a new trial on the 

ground of new evidence of illegality when judgment had been entered 

without the introduction of any evidence of illegality; the Supreme 

Court distinguished Lewis & Queen on the basis that “[i]n that case the 

issue of illegality was first raised during the trial and not for the first 

time on a motion for a new trial”].) We need not answer that question, 

however, because we conclude there is no merit to her contentions of 

illegality.
22

1. The Amendment Does Not Violate Civil Code Section 1940.2

Civil Code section 1940.2 provides that “[i]t is unlawful for a 

landlord to do any of [five specific acts] for the purpose of influencing a 

tenant to vacate a dwelling.” (Civ. Code, § 1940.2, subd. (a).) The five 

acts are set forth in subdivisions (a)(1) through (a)(5). They are: (1) 

engaging in theft in violation of Penal Code section 484, subdivision (a); 

(2) engaging in extortion in violation of Penal Code section 518; (3) 

using (or threatening to use) force, willful threats, or menacing conduct 

constituting a course of conduct that interferes with the tenant’s quiet 

enjoyment of the premises that would create an apprehension of harm 

in a reasonable person; (4) committing a significant and intentional 

violation of Civil Code section 1954 (which limits the circumstances in 

which a landlord may enter a tenant’s dwelling); and (5) threatening to 

disclose information relating to the immigration status of a tenant or 

other person known to be associated with a tenant. 

Weiss contends Owner’s amendment of the attorney fee provision 

of the lease to impose a cap on fees violated Civil Code section 1940.2 

because it was an “integral part of a complex and fraudulent scheme” to

harass and influence Weiss to vacate her apartment. She argues that

the trial court erred by focusing only on Owner’s act of amending the 

attorney fee provision when determining whether Civil Code section 

1940.2 applied. We disagree.

Weiss misapprehends the scope of Civil Code section 1940.2. The 

statute does not make illegal any conduct intended to influence a tenant 

to vacate a dwelling. Only conduct that falls within the five acts or 

conduct described in subdivisions (a)(1) through (a)5) is unlawful under 
23

the statute. And, while subdivision (a)(3), relied upon here by Weiss, is 

somewhat broader than the others, it is not as broad as Weiss supposes.

To come within subdivision (a)(3) of Civil Code section 1940.2,12 (1) 

a landlord must use force, make willful threats, or engage in menacing 

conduct; (2) that use of force, threats, or menacing conduct must 

constitute a course of conduct that interferes with the tenant’s quiet 

enjoyment of the premises; and (3) that course of conduct must be such 

that it would create an apprehension of harm in a reasonable person. 

Weiss does not—and cannot—argue that the amendment of the 

attorney fee provision, by itself, was a use of force, a threat, or 

menacing conduct. Instead, she argues it was part of a “scheme” in 

which Owner filed two lawsuits against Weiss after amending the 

attorney fee provision and filed numerous motions and appeals in those 

case. Weiss asserts this “scheme” was “menacing” because it forced

Weiss to pay significant attorney fees. But even if filing and 

aggressively litigating lawsuits could be deemed “menacing conduct” 

under Civil Code section 1940.2—which is questionable given Owner’s 

constitutional right of petition—the amendment of a month-to-month 

lease agreement, in accordance with the terms of the agreement, to limit 

the recovery of contractual attorney fees cannot be considered 

12 The exact language of subdivision (a)(3) of Civil Code section 1940.2 is 

as follows: “Use, or threaten to use, force, willful threats, or menacing 

conduct constituting a course of conduct that interferes with the tenant’s 

quiet enjoyment of the premises in violation of Section 1927 that would create 

an apprehension of harm in a reasonable person. Nothing in this paragraph 

requires a tenant to be actually or constructively evicted in order to obtain 

relief.”
24

“menacing conduct,” especially when the right to any fees at all is solely 

derived from the agreement itself. (See Trope v. Katz (1995) 11 Cal.4th 

274, 278 [“California follows what is commonly referred to as the 

American rule, which provides that each party to a lawsuit must 

ordinarily pay his own attorney fees”]; Code Civ. Proc., § 1021 [“Except 

as attorney’s fees are specifically provided for by statute, the measure 

and mode of compensation of attorneys and counselors at law is left to 

the agreement, express or implied, of the parties”].)

In short, the trial court did not err in concluding that Owner’s 

amendment of the attorney fee provision in the lease agreement was not 

unlawful under Civil Code section 1940.2.

2. The Amendment Does Not Violate the Public Policy of 

LARSO

Weiss contends Owner’s unilateral amendment of the attorney fee 

provision is a pretext eviction because it is part of an alleged scheme to 

use the legal system to force Weiss to spend so much money on attorney 

fees that she will be forced to vacate her apartment. Relying upon 

Boston LLC v. Juarez (2016) 245 Cal.App.4th 75 (Boston), she argues 

the amended provision is unenforceable because it violates LARSO’s 

public policy to prevent pretext evictions. But Boston is inapposite. 

In Boston, the lease at issue included a provision stating that the 

landlord had the right to forfeit the agreement and terminate the 

tenant’s right to possession for any failure by the tenant to comply with

or perform any of the obligations under the lease. (Boston, supra, 245 

Cal.App.4th at p. 78.) One of those obligations required the tenant to 
25

obtain insurance coverage to protect the tenant for any personal injury 

or property damage. The tenant never obtained that insurance, and

after 15 years the landlord served him with a three-day notice to 

perform or quit. When the tenant failed to perform within the three 

days, the landlord filed an unlawful detainer action. (Ibid.) The 

landlord prevailed below, but the appellate court reversed. 

The appellate court held that forfeiture of a lease is allowed only 

when a tenant’s breach of the lease is material. It found there was no 

material breach in the case before it because the required insurance 

was to protect only the tenant’s interest, so the tenant’s failure to obtain 

insurance could not have harmed the landlord. (Boston, supra, 245 

Cal.App.4th at p. 79.) In reaching its holding, the court relied upon a 

long line of case law holding that a lease can be terminated only for a 

material breach, even if the lease includes a clause that purports to 

dispense with the materiality limitation. (Id. at p. 81.) But the court 

also examined the materiality requirement in the context of LARSO’s 

objectives, which “seek[] 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.” (Id. at p. 84.) The court noted 

as one example of those limitations that “LARSO prohibits landlords 

from terminating leases without one of 14 enumerated ‘good causes.’” 

(Ibid.) The court found that allowing a landlord to forfeit a lease based 

upon a minor or trivial breach under a one-sided forfeiture provision 

that entirely benefits the landlord “would allow [the landlord] to 

strategically circumvent LARSO’s ‘good cause’ eviction requirements 
26

and disguise pretext evictions under the cloak of contract provisions.” 

(Id. at p. 85.) It concluded that “LARSO’s public policy goals of 

providing stable affordable housing to low-income Angelenos and 

preventing pretext evictions outweigh the free market and freedom to 

contract principles allowing a landlord to include a unilateral forfeiture 

clause in an urban residential rental contract.” (Ibid.) 

Boston does not assist Weiss. Unlike the situation in Boston, 

where LARSO specifically limited the landlord’s right to do what the 

offending lease provision would allow it to do, LARSO does not address 

a landlord’s right to include a lease provision that allows, precludes, or 

limits the recovery of attorney fees incurred in litigation regarding the 

lease. Moreover, the lease provision at issue in this case differs 

significantly from the lease provision in Boston because it is not onesided. The amended attorney fee provision limits the recoverable 

attorneys for both parties.13 Finally, given that landlords are not 

required to include any attorney fee provision at all in residential 

13 To the extent Weiss contends that the provision of the lease allowing 

Owner to amend the terms and conditions of the lease on 30 days written 

notice (once the leasehold ended and was converted to a month-to-month 

tenancy) is contrary to LARSO public policy, her contention fails. Even if she 

could identify a LARSO public policy that precluded such a provision (and she 

has not), it would be contrary to state law. (See Civ. Code, § 827, subd. (a) 

[“Except as provided in subdivision (b), in all leases of lands or tenements, or 

of any interest therein, from week to week, month to month, or other period 

less than a month, the landlord may, upon giving notice in writing to the 

tenant, in the manner prescribed by Section 1162 of the Code of Civil 

Procedure, change the terms of the lease to take effect, . . . as to tenancies 

from month to month, . . . at the expiration of not less than 30 days”].)
27

leases, amending an attorney fee provision to limit the amount that 

either side may recover cannot be deemed a pretext eviction.

3. The Amendment Does Not Violate the Covenant of Good 

Faith and Fair Dealing

Weiss contends Owner’s amendment of the attorney fee provision 

violated the covenant of good faith and fair dealing, relying upon Cobb

v. Ironwood Country Club (2015) 233 Cal.App.4th 960 (Cobb) for the 

proposition that “the covenant prevents a party from unilaterally 

amending a contract to remove existing rights.” Her reliance is 

misplaced.

In Cobb, the defendant country club amended its bylaws—after it 

had been sued by current and former club members—to add an 

arbitration provision, and then moved to compel arbitration of the 

members’ lawsuit. (Cobb, supra, 233 Cal.App.4th at p. 962.) Although 

the club’s bylaws included a provision allowing the bylaws to be 

amended, the appellate court found the amendment at issue could not 

be enforced, observing that “[w]hen one party to a contract retains the 

unilateral right to amend the agreement governing the parties’ 

relationship, its exercise of that right is constrained by the covenant of 

good faith and fair dealing which precludes amendments that operate 

retroactively to impair accrued rights.” (Id. at p. 963.) 

That certainly is a correct statement of law, but it has no bearing 

on the instant case. The court in Cobb did not conclude that all

unilateral amendments to an agreement that allows amendments by 
28

one party necessarily violate the covenant of good faith and fair dealing. 

Indeed, the court recognized that “‘the fact that one party reserves the 

implied power to terminate or modify a unilateral contract is not fatal 

to its enforcement, if the exercise of the power is subject to limitations, 

such as fairness and reasonable notice.’” (Cobb, supra, 233 Cal.App.4th 

at p. 965.) In this case, there is no question Owner gave Weiss 

reasonable notice of the amendment of the attorney fee provision, given 

that Owner served the notice of change of terms six months before filing 

the first lawsuit against Weiss, and more than a year before filing the 

instant lawsuit. 

Weiss argues, however, that the amendment was not fair because 

“the $500 Cap removed all but $500 of Weiss’s right to attorney’s fees, a 

right that was extremely valuable.” Had the amendment applied to 

limit only Weiss’s “right” to all of her attorney fees, we might agree that 

it was not fair. But the amendment capped both parties’ entitlement to 

attorney fees, and it did so before any litigation was filed, i.e., before 

either party had incurred any attorney fees in litigation, and thus no 

right to reimbursement of those fees had accrued. Therefore, we find 

that Owner did not violate the covenant of good faith and fair dealing 

by amending the attorney fee provision.

4. The Amendment is Not an Unlawful Penalty

Weiss contends the amended attorney fee provision is an 

unenforceable penalty because it results in a forfeiture without regard 

to the actual damage suffered. She identifies the “forfeiture” as the 

$80,000 in attorney fees she incurred in defending against the instant 
29

lawsuit, which the amended attorney fee provision precludes her from 

recovering. She asserts that the amended provision provides a windfall 

to Owner because without it Weiss would recover from Owner the full 

amount of the fees. Therefore, she argues “the $500 cap permits 

property to be ‘forfeited without regard to the actual damage suffered.’” 

(Citing Ebbert v. Mercantile Trust Co. of California (1931) 213 Cal. 496, 

499.) Weiss’s reasoning is faulty.

Simply put, the amended attorney fee provision did not cause 

Weiss to “forfeit” any attorney fees, because under the so-called 

“American rule” she was required to bear the cost of her own attorney 

fees except as provided in the contract. (See Trope v. Katz, supra, 11 

Cal.4th at pp. 278-279.) And at the time this lawsuit was filed, the 

lease agreement provided that the prevailing party in litigation 

regarding the agreement was entitled to recover up to $500 in attorney 

fees. The fact that the lease agreement previously did not cap the 

recoverable fees does not turn the amended provision into a forfeiture 

clause. As discussed, both the lease agreement and state statutory law 

allowed Owner to amend the agreement once the leasehold ended and it

became a month-to-month tenancy, as long as proper notice was given 

to Weiss. Owner gave proper notice of the change of terms more than a 

year before the instant lawsuit was filed. Therefore, the amended 

attorney fee provision governed the recovery of attorney fees in this 

lawsuit, allowing Weiss to recover up to $500 in fees.
30

5. The Amendment is Not Unconscionable

Weiss contends that paragraph 15 of the lease agreement, which 

allowed the unilateral amendment of the attorney fee provision, is 

unconscionable because the lease was offered on a take-it-or-leave-it 

basis, the terms of paragraph 15 were not highlighted, Owner did not 

tell Weiss in advance about the amendment, and the harm inflicted on 

Weiss (i.e., not being able to recover more than $80,000 in attorney fees

that she incurred) has “‘shocked the conscience.’” 

Weiss’s argument fails for two reasons. 

First, paragraph 15 simply mimics statutory law. As noted, Civil 

Code section 827 expressly allows landlords to change the terms of any

month-to-month tenancy, as long as the change does not take effect in 

fewer than 30 days from when notice is given. Paragraph 15 provides 

that after the expiration of the lease period, which is when the 

leasehold changes to month-to-month tenancy, the terms and conditions 

of the lease would be subject to change by the owner upon 30 days 

written notice. A lease provision that merely sets out what state 

statutory law provides is not an unconscionable provision.

Second, the “harm” that Weiss asserts is no more (and, in fact, 

slightly less given the $500 attorney fee award) than that suffered by a 

majority of litigants in California because our Legislature has elected to 

follow the “American rule” regarding attorney fees. Thus, unless one of 

the exceptions to the rule applies, or the litigants have contracted 

otherwise, each party must bear its own attorney fees. While the 

amount of attorney fees a party incurs might “shock the conscience,” it 
31

does not render a contractual provision limiting the recovery of those 

fees unconscionable.

C. Request for New Trial or Stay

Weiss argues that the trial court improperly ruled on the 

applicability of the amended attorney fee provision because it admitted 

that the factual record was not adequately developed. Therefore, she 

requests that this Court reverse the trial court’s ruling on attorney fees 

and either order a new trial on the issue or order the matter stayed to 

allow the trial court in the first action to address the issue. We decline 

to do so. The issue of attorney fees was raised in this lawsuit by Weiss. 

It was incumbent upon her to present with her motion for attorney fees

all of her arguments, with the evidence necessary to support them, as to 

why the amended attorney fee provision should not apply. She cannot 

be heard now to complain that the trial court issued a ruling on her 

motion for attorney fees based upon the record she provided for that 

motion.

//

//

//

//

//

//

//
32

DISPOSITION

The judgment is affirmed. Respondent 510PacificAve shall 

recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.