Filed 7/12/24 Dey v. Matheka CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPEL L ATE DISTRICT

DIVISION EIGHT

PENNY DEY

, as Successor Trustee, etc.

,

Plaintiff and Re spondent,

v.

R OBERT MATHEKA

,

Defendant and Appellant

. B 3 2 1403

Los Angeles County Super. Ct. No. 21WCUD00388

APPEAL from a judgment of the Superior Court of Los Angeles County. James A. Kaddo , Judge. Affirmed

.

Cal Tenant Law an d Jeremy Cook for Defendant and Appellant

.

No appearance for Plaintiff and Respondent.

_____________________________2 SUMMARY The jury in a commercial unlawful detainer trial found in
favor of the lessor

. The judgment awards the lessor possession of
th e premises and $26,818 in holdover damages

. The tenant (defendant) appeals. He contends the trial court erred by refusing to allow him to present evidence on his “main defense” of retaliatory conduct by the lessor. Defendant also contends the lessor’s

m istaken deposit and subsequent reimbursement to defendant of a
rent check , occurring after lessor’s 30

- day eviction notice

, invalidated the notice as a matter of law, and the issue should not have gone to the jury. Defendant claims he had no individual
li ability and should have been dismissed from the case; that he was prejudiced by admission of irrelevant evidence that inflamed the jury; and the court was biased against him. We conclude the trial court properly rejected defendant’s
retaliation defense and none of defendant’s other claims has merit. Accordingly, we affirm the judgment.
FACTS
Plaintiff Sandra Johnson was a trustee of the Martha H. Marsh Revocable Trust, the owner of the property. She died during this litigation , in August 2021, and her si ster Penny Dey became
the trustee and plaintiff. ( At trial, the parties sometimes referred
to Ms. Johnson as “the former landlord.”) Ten years earlier, in August 2011, the trust as lessor and Kala Construction, Inc. as tenant entered into a commercial lea se of an office and utility yard in the C ity of La Verne

. Robert Matheka signed the lease for the tenant. Mr. Matheka is the defendant. ( A default judgment was entered against Kala Construction.)
The lease was for a one

- year term beginning September 1,
2011

, and ending September 1, 2012, “with self renewing clause or 30 day notice in writing, prior to lease end.” R ent was $2,300 per month, with a 6 percent service charge if not paid by the fifth day of3

each month. “Each year during the term of this le ase and any extensions of it, beginning with the second year of the lease, the monthly rental for the twelve months commencing on September 1,
2012 , shall be increased ” by an amount “to be determined at that time, by approval of both parties. ” (Under score omitted.) The rent
was never increased. Plaintiff wanted to sell the property, and defendant knew that plaintiff was trying to do so. In February 2020, plaintiff served a
30

- day notice of termination of tenancy, but did not proceed further
at that time and continued to receive rent payments from
defendant. A year later, on March 31, 2021, plaintiff served the operative
30

- day notice of termination of tenancy , requiring defendant to vacate the premises within 30 days. Defendant remained in the premises and sent plaintiff a check for May 2021 rent , which plaintiff cashed by mistake. She reimbursed defendant by sending him a check for $2,300 and explaining his payment had been deposited by mistake. On June 24, 2021, plaintiff filed an unlawful detainer

c omplaint. Plaintiff filed the operative first amended complaint on October 27, 2021, seeking possession, ba c k rent or holdover amounts and attorney fees. Defendant remained in possession of the premises until the
time of trial , at which he represented hi mself. Trial began on March 16, 2022

, and ended on March 18, 2022, with a general verdict for plaintiff, awarding damages of $26,818. The court entered judgment awarding plaintiff possession of the premises and $26,818 in holdover damages.
Defendant file d a timely appeal from the judgment.

DISCUSSION Defendant, now represented by counsel, does not claim a lack of substantial evidence to support the verdict. Instead, he contends4

that assorted legal errors necessitate reversal as a matter of law.
We dis agree.
1. Retaliatory eviction Defendant’s principal claim

— which he describes as his “main
defense”

— is t hat the trial court did not allow him to present evidence or testimony of retaliation

. He asserts this case is “an illegal retaliatory eviction in whi ch the landlord removed the gas lines and shut off the water in retaliation of [defendant] remaining on the premises.” Defendant claims the court erred in concluding the affirmative defense of retaliatory eviction does not apply to a
commercial lease. We find no error in the circumstances of this

case. Under the Civil Code, it is unlawful for a lessor (among other things) to “bring an action to recover possession

. . . for the purpose of retaliating against the lessee because the lessee

. . . has lawfull y and peaceably exercised any rights under the law.” (Civ. Code, § 1942.5, subd. (d).) Most cases involving retaliatory eviction concern residential leases. However, in Custom Parking, Inc. v. Superior Court (1982) 13 8 Cal.App.3d 90 ( Custom Parking ) , th e court held that the defense of retaliatory eviction could be raised in an unlawful detainer action brought against a commercial tenant, where the lessor terminated the tenancy “because [ the tenant’s ] officers and employees refused to perjure themselves i n an action involving [the lessor] and other tenants of [the lessor].” ( Id. at

p p. 91

- 92 ; see id. at p. 101.) Custom Parking explains the history of the retaliatory
eviction defense and the development of the principle that a landlord “ ‘ “ may be preclude d from evicting a tenant in retaliation
for certain kinds of lawful activities

, ” ’ ” such as reporting a crime to the police or other basic legal rights. ( Custom Parking, supra,
13 8 Cal.App.3d at p. 94 ; see id. at pp. 93

- 95.) The court also5

recognized th e issue was complicated “by case law which recognizes and/or applies a distinction between commercial and residential unlawful detainer actions.” ( Id. at p. 96 ; see id. at pp. 96

- 101 .) Custom Parking allowed the retaliatory eviction defense in
that case b ecause it involved a “strong public policy against intimidating witnesses in a lawsuit from testifying honestly,” a
context where “the distinction between a commercial and a residential tenancy pales into insignificance.” ( Custom Parking,

supra, 13 8 Cal.A pp.3d at p. 101.) The court applied the principle
established in S.P. Growers Assn. v. Rodriguez (1976) 17 Cal.3d 719, a residential eviction case: “ In evaluating whether defendants have raised a valid defense of retaliatory eviction, we must engage
in a balancing process. We must determine whether the public policies furthered by protecting defendants from eviction outweigh the interests in preserving the summary nature of unlawful detainer proceedings. ” ( Id. at p. 724; see id. at pp. 724, 730 [an
evic tion in retaliation for the filing of a federal lawsuit charging violations of a federal farm labor statute was improper].)
In short , in a commercial case, the retaliatory eviction defense is applicable, if at all, only where there is a strong public polic y that would be furthered by protecting the lessee from eviction: as Custom Parking observes, “whether the need for litigating that
matter in the unlawful detainer action is so vital as to overcome the public policy underlying the summary nature of unlawf ul detainer.” ( Custom Parking, supra, 138 Cal.App.3d at p . 100.) Defendant has identified no public policy of any kind that supports protecting him from eviction. Consequently, the trial court did not err in excluding evidence of defendant’s purported r etaliatory eviction defense.
2. Other Contentions

a. Receipt of rent after 30

- day notice Defendant asserts that because plaintiff cashed his May 2021 rent check, his tenancy was reinstated and another 30

- day notice6

was required before he could be evicted. He contends the court should not have sent this issue to the jury , and instead should have
dismissed the case. We disagree. Neither of the cases defendant cites stands for the proposition
that a new 30

- day notice was required despite plaintiff’s evidenc e of mistaken cashing of the rent check and return of the funds to
defendant. Neither case concerns mistaken deposit of a rent check.
In Highland Plastics, Inc. v. Enders (1980) 109 Cal.App.3d Supp. 1 , t he court states the principle that “i f the rent wa s not accepted by the landlord, there was no waiver of plaintiff ’ s termination of defendant ’ s month

- to

- month tenancy nor was
there an implied withdrawal of the notice of termination. ” ( Id. at

p. 12.) In Highland Plastics, the landlord did not deposit the rent checks, and the evidence was “sufficient to support the implied finding of the trial court that there was no acceptance of the tendered rent during the notice period.” ( Id. at pp. 11

- 12.) Here, the jury could reasonably find plaintiff’s mistaken de posit of the rent and its return to defendant did not amount to receipt or acceptance of the rent. The other case, Kern Sunset Oil Co. v. Good
Roads Oil Co. (1931) 214 Cal. 435

, does not help defendant either.
Kern involved a lease of oil lands and stand s for the proposition that “[t] he acceptance of rent by the landlord from the tenant, after the
breach of a condition of the lease, with full knowledge of all the facts, is a waiver of the breach and precludes the landlord from declaring a forfeiture of th e lease by reason of said breach. ” ( Id. at

p. 440 .) This case has nothing to do with waiver after breach of a
condition of the lease.
Defendant assert s there are “problems with [the mistake] theory” because the return check was sent a month later and “c ould
not be cashed” because it was made out to defendant (and not to his corporation). The jury apparently found no such problems; nor do

we.7 b. Defendant’s motion to dismiss Before jury selection, defendant made an oral motion to
dismiss himself from th e case , arguing that he was not a party to the lease and did not live on the property

. Plaintiff ’s counsel contended a judgment against defendant was needed to obtain a writ of possession and defendant was refusing to surrender possession as an individual

. The trial court denied defendant’s
motion. On appeal, defendant again contends the lease was in the name of a corporate entity which had already defaulted and therefore defendant had no individual liability

. His argument takes up less than a page, cite s no authority, and does not address his refusal to surrender possession of the premises. No error has been
demonstrated.

c. The claimed evidentiary error
T he trial court admitted into evidence an August 13 , 20 21 e

mail from plaintiff’s counsel, respondin g to an e

- mail from a lawyer

, Chelsea Cooper, who stat ed she was filing an ex parte application
on defendant’s behalf. The responding email from plaintiff’s counsel stated that “due to your client’s behavior during the last few months” occupying the prope rty, the owner had died of ca n cer

“ without any end of life money as she was selling this property for her hospice care. Your client knew this full well.” (Underscoring omitted.) Defendant objected on the ground Ms. Cooper was not his lawyer. At trial, on cross

- examination of defendant by plaintiff’s counsel, defendant was told to read the e

- mail to the jury. There was also testimony from another witness and comments in plaintiff’s closing about the landlord’s cancer. Defendant contends
it was an abuse of discretion to allow plaintiff to use the late owner’s illness to inflame the jury.
Defendant did not object to this evidence on the ground he now raises on appeal. However, we need not address the8

admissibility of the evidence ; even if there were err or, defendant
has shown no reasonable probability that he would have obtained a
more favorable result absent the error.
d. Judicial bias Finally, defendant contends the trial court “express[ed] such a severe and consistent bias throughout the trial in fron t of the jury” that defendant “could not possibly have a fair trial.” Defendant
relies on Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, where the court reversed the judgment “because the judge committed misconduct so egregious [ the plainti ffs] were denied a
fair trial

. ” ( I

d. at p. 1002 ; see also id. at p. 1008 [ “ ‘ [w]here

. . . the appearance of judicial bias and unfairness colors the entire record,
we d epart from the general rule requiring plaintiff to make an affirmative showing of preju dice ’ ” ].) This is not such a case.
Defendant first recites the trial court’s comments at a settlement conference, where the judge spoke to each side separately. These comments were not m ade in front of the jury. Next, defendant criticizes the court for asking defendant why he was refusing to leave, and stating “now you’re talking as a lawyer?” when defendant responded that land l ords must follow a series of steps to evict a tenant legally

. Defendant claims this exchange “communicated to the jury [the co urt’s] view that [defendant] should have left,” and was comparable to the Haluck trial court’s
misconduct in implying unethical or underhanded behavior by
counsel in that case

. We disagree. The exchange just described was not in any way comparable
to the egregious misconduct in Haluck , which was described at length ( Haluck, supra, 151 Cal.App.4 th at pp. 1003

- 1007) and included lack of courtesy and decorum, conduct “ ‘cast[ing] the judicial system itself in a bad light’ ” ( id. at pp. 1003

- 1004), and

many ex amples of “inappropriate conduct that mocked plaintiffs and their testimony and impugned their credibility” ( id. at p. 1007).9 D efendant then asserts he “did not get a chance to present his case in the manner he wanted,” “he was not able to testify about t he checks, or other topics he might want to raise

, ” and the judge “frequently displayed a hostile demeanor.” Defendant ends by referring to “derogatory comments coloring the entire record,” but identifies no comments made before the jury that can be descr ibed as derogatory. Unlike defendant, we do not see judicial bias against
defendant on th e record of this trial . Indeed, we see instances where the trial court criticized plaintiff’s counsel and raised objections on behalf of defendant. Certainly this is not a case where defendant may be relieved of the affirmative burden of showing prejudice, as in Haluck , where “ ‘ the court ’ s comments would cause a reasonable person to doubt the impartiality of the judge or would
cause us to lack confidence in the fairn ess of the proceedings such
as would necessitate reversal. ’ ” ( Haluck, supra, 151 Cal.App.4 th at p. 1008.) Defendant has established no such doubt.
D ISPOSITION
The judgment is affirmed

. No costs are awarded.

GRIMES, Acting P. J.
WE CONCUR:

W ILEY, J.

VIRAMONTES

, J.