Filed 7/22/13 Hendelman v. Los Altos Apartments CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 THREE

DAVID HENDLEMAN et al.,

Plaintiffs and Appellants,

v.

LOS ALTOS APARTMENTS, L.P., et al.,

Defendants and Respondents.

 B235404

 (Los Angeles County

 Super. Ct. No. BC406059)

APPEAL from an order of the Superior Court of Los Angeles County, 

Michael Johnson, Judge. Affirmed.

Law Office of Sheri L. Kelly, Sheri L. Kelly; Consumer Law Offices and 

Daniel T. LeBel for Plaintiffs and Appellants.

Willis Depasquale, James M. Hansen, Larry N. Willis and Thomas M. 

Rutherford, Jr., for Defendants and Respondents.

_________________________
2

INTRODUCTION

Named plaintiffs David Hendleman and Anne Aaronson appeal from the order of 

the trial court denying their motion for certification of a class of tenants at the Los Altos 

Apartments in the context of their lawsuit against the landlord. Plaintiffs brought this 

action alleging the landlord failed to repair and maintain the property in a safe and 

habitable condition over a period of 10 months, unlawfully demanded increased rents, 

and retaliated against the tenants for exercising their rights. The trial court denied 

plaintiffs‟ motion for class certification for lack of ascertainability, community of 

interest, and superiority. In their appeal, plaintiffs contend that the class is ascertainable 

and there are common issues of law and fact, with the result they should be able to 

proceed as a class against defendants Los Altos Apartments, L.P., Charles and Cynthia 

Eberly, Inc., Allen Gross, Charles Eberly and David Strahm who are owners, managers, 

or representatives of the apartment building (together the landlord or defendants). To the 

extent problems of ascertainability or commonality exist, they argue, the class can be 

modified. We conclude the trial court correctly ruled that individual issues of law and 

fact predominate all five causes of action. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

1. The ordinances at issue 

Plaintiffs‟ lawsuit is premised on two City of Los Angeles ordinances, the Rent 

Escrow Account Program (REAP) (L.A. Mun. Code, § 162.00 et seq.) and the 

Los Angeles Rent Stabilization Ordinance (RSO) (L.A. Mun. Code, § 151.00 et seq.). 

The Los Angeles City Housing Code is designed to address the problem of “substandard 

and unsanitary residential buildings” in the city that render the dwellings “unfit or unsafe 

for human occupancy” and are detrimental to the health, safety, and welfare of their 

occupants and threaten the physical, social, and economic stability of residential 

buildings. (L.A. Mun. Code, § 161.102.) The goal of REAP is to provide a “just, 

equitable and practical method” for enforcement of the purposes of the Housing Code 

and “to encourage compliance by landlords with respect to the maintenance and repair of 

residential buildings, structures, [and] premises.” (L.A. Mun. Code, § 162.01(A).) The 
3

RSO addresses a declared shortage of decent, safe and sanitary housing at affordable 

levels that has a detrimental effect on substantial numbers of renters in the city. 

(L.A. Mun. Code, § 151.01.) The RSO regulates rents to safeguard tenants from 

excessive rent increases while providing landlords with reasonable returns from their 

rental units. (Ibid.)

Under REAP, the Los Angeles Housing Department (LAHD), among other city 

agencies, periodically inspects rental buildings and orders landlords to correct violations 

of the city‟s Housing Code and California‟s Health and Safety Code (L.A. Mun. Code, 

§ 161.401, 161.201, 161.602.1, 161.701.2 & 161.702.) If the property is the subject of 

one or more of such orders, the period for compliance has expired, and the orders concern 

violations that affect the health or safety of the occupants, or if the property is subject to 

the RSO and results in the deprivation of housing services or habitability, the LAHD 

places the property into REAP. (L.A. Mun. Code, §§ 162.03-162.05.) Among the effects 

of being placed into REAP is a mandatory reduction in rents, up to 50 percent, according 

to a schedule that takes into account the nature of the violation, the severity of the 

conditions, and the history of past untenantable conditions. (L.A. Mun. Code, § 162.05.) 

When it accepts a property into REAP, the LAHD serves notice on all affected 

tenants (L.A. Mun. Code, § 162.04(E)) and establishes a trust fund account into which 

tenants may deposit rent payments. (L.A. Mun. Code, § 162.07(a)(1).) Once the 

landlord complies with the notices and corrects the violations, the LAHD terminates 

REAP and returns the funds in the escrow account minus fees to the landlord. 

(L.A. Mun. Code, § 162.08.)

The RSO regulates rents. (L.A. Mun. Code, § 151.01.) A rent increase is defined 

as an increase in rent or a reduction in housing services without a concomitant reduction 

in rent. (L.A. Mun. Code, § 151.02.) The RSO controls the rate at which a landlord may 

increase rent for property that is subject to the RSO. 
4

2. The Los Altos Apartments and the LAHD

The Los Altos Apartments, located at 4121 Wilshire Boulevard, Los Angeles, is a 

68-unit, five story apartment building constructed in the 1920s. Twenty eight units, or 40 

percent of the apartments, are affordable units intended for low-income tenants. 

The LAHD inspected the Los Altos Apartments three times in May, July, and 

August 2006. It placed the property into REAP in February 2007 (Case No. 79550) and 

reduced the rents by the maximum of 50 percent for “almost every single unit.” The 

REAP order became final in March 2007. (L.A. Mun. Code, § 162.02(A).)

The Los Altos Apartments sued the City of Los Angeles (the City) for placing it 

into REAP. Among other things, the landlord alleged that it had cooperated with 

LAHD‟s inspectors and timely repaired the violations. The trial court dismissed the 

action because, inter alia, the Los Altos Apartments failed to exhaust its administrative 

remedies. Another division of this District Court of Appeal affirmed the lawsuit‟s 

dismissal on the basis that the Los Altos Apartments failed to present a timely claim. 

(Los Altos Apartments, L.P. v. City of Los Angeles (July 7, 2011, B222174) [nonpub. 

opn.].)1

3. The instant complaint brought by the named plaintiffs

The named plaintiffs filed the fourth amended complaint on behalf of similarly 

situated tenants who resided at, and paid rent to, the Los Altos Apartments between 

January 22, 2005 and September 2010. The complaint alleges that the LAHD issued the 

landlord repeated notices and placed the property into REAP for the following: fire safety 

violations, such as the failure to maintain required self-closing, self-latching separation 

fire doors in the common areas, obstructed exits and stairwells blocked emergency 

egress, and problems with the exterior weatherproofing, all of which defects are alleged 

to have an impact on the common areas and constitute violations of the Los Angeles 

Municipal Code and California‟s Health and Safety Code. The complaint alleges that 

 

1 Unpublished opinions of the Court of Appeal may be cited under the doctrines of 

law of the case and collateral estoppel. (Cal. Rules of Court, rule 8.1115(b).)
5

during the class period, the landlord reduced the following housing services: (1) fire and 

emergency safety and (2) weatherproofing, which service reductions caused the building 

to be accepted into REAP; along with (3) trash pickup causing overflowing trash bins; 

(4) elevator function; and (5) security, all of which deficiencies affect tenants in a similar 

fashion. The complaint alleges further that in violation of REAP, the landlord demanded 

the full unadjusted rent, and sometimes more, by (1) issuing multiple notices to plaintiffs 

and the putative class falsely stating the tenants were obligated to pay the full amount 

directly to the landlord, (2) issuing three-day notices to pay rent or quit, and (3) issuing 

notices falsely stating the tenants owed past due rent in the amount of hundreds and 

sometimes thousands of dollars. 

Plaintiffs allege against the landlord: (1) violation the RSO (L.A. Mun. Code, 

§ 151.04) by charging the full rent despite reducing housing services; (2) retaliation 

against the class in violation of REAP (L.A. Mun. Code, § 162.00 et seq.) by demanding 

every tenant pay rent that exceeded the reduced amounts, issuing three-day notices to pay 

rent or quit, and demanding tenants pay past-due rent directly to the landlord; (3-4) 

breach of the implied warranty of habitability and nuisance by reducing services and 

causing the property to be accepted into REAP; and (5) abuse of process. In addition to 

damages, plaintiff seek an injunction to abate the nuisance and the landlord‟s harassment. 

4. Plaintiffs’ class certification motion

a. class and subclass definition

The two named plaintiffs moved for certification of a class defined as follows: 

“All tenants of the Los Altos Apartments, located at 4121 Wilshire Blvd., Los Angeles, 

CA 90010, during any part of the time period of January 22, 2005 to the present.” 

Plaintiffs‟ proposed subclass would consist of “Any class member who received 

any of the following notices: (1) a three-day notice to pay rent or quit on or about 

April 12, 2007; (2) a notice dated April 16, 2007 stating that the tenant was obligated to 

„pay your full rent directly to the landlord;‟ or (3) a notice in late June, 2007 stating that 

the tenant owed a past due amount, without an explanation as to what the overdue amount 

referred.”
6

The certification motion defined the term “ „tenant‟ ” in the class and subclass, 

based on the RSO (L.A. Mun. Code, § 151.02). The trial court proposed a revision to 

plaintiffs‟ definition to include, rental payments accepted by the landlord. It reasoned 

that case law recognizes as tenants, not just those who were parties to leases or subleases, 

but also those who were subtenants whose rental payments were accepted by a tenant. 

The final proposed iteration read: “The term „tenant‟ in the Class and Subclass means any 

tenant, lessee, or occupant under a written lease or rental agreement, or any tenant, 

subtenant, sublessee or other person entitled to use or occupy a rental unit and who 

submitted one or more rental payments that were accepted by the Landlord.” 

Plaintiffs emphasized that the class was ascertainable. The landlord provided the 

names, dates of occupancy, and last known addresses of 132 tenants who signed leases. 

Thus, identifying the tenants who overpaid rent when the property was in REAP could be 

accomplished by comparing the landlord‟s records with the City‟s orders, plaintiffs 

argued. In fact, defendants had already identified many of the class and subclass 

members, plaintiffs observed. 

b. Common questions of law and fact

Plaintiffs averred that the class and subclass shared a community of interest 

because, among other things, common questions of law and fact predominated. Plaintiffs 

asserted their complaint‟s five causes of action arose from a single set of four common 

questions: “(1) whether severe Code violations, as cited by the LAHD, affecting the 

whole building existed at Los Altos from May 2006 through March 2007, and if so, 

whether Plaintiffs are entitled to recover partial refunds of rent under Plaintiffs‟ legal 

theories; (2) whether, under the circumstances of the Property being placed in REAP, the 

Landlord wrongfully demanded, collected or retained more than 50% of rent from the 

tenants; (3) whether the uniform three-day notices to pay rent or quit and other uniform 

notices demanding more than the reduced amount of rent from the tenants when the 

Property was in REAP constituted retaliation; and (4) whether the Landlord has failed to 

adequately maintain the elevator, security, garbage, and other housing services at the 

Los Altos during the class period.” 
7

Many of the defects involved code violations or habitability issues in individual 

apartments. On appeal, plaintiffs declare they are not challenging the trial court‟s order 

denying certification of a class for defects in individual units. Rather, plaintiffs seek 

review of the trial court‟s denial of certification of a class affected by defects in the 

common areas only. 

As common evidence of substandard conditions in the common areas, plaintiffs 

pointed to testimony from the LAHD‟s housing inspectors, the LAHD inspection reports 

and work logs reflecting the 2006-2007 violations, the landlord‟s maintenance records 

and past due trash bills, testimony from percipient witnesses, and photos. Attached to the 

certification motion was a list the landlord gave LAHD of over 60 tenants who lived at 

Los Altos Apartments when the building was referred to REAP, along with the tenants‟ 

then-current, non-REAP rents. Also included with the motion were the landlord‟s notice 

to “All Tenants” demanding full rent while the building was in REAP, which the building 

manager testified in deposition was distributed to every tenant and posted in the common 

areas. 

5. Opposition to the class certification motion

Defendants‟ opposition first raised questions about plaintiffs‟ ability to 

demonstrate an ascertainable class. Defendants argued that, as defined by plaintiffs, 

membership in the class “would require a person by person inquiry and evaluation of 

individual facts.” For example, Unit 307 was leased to one person, whereas named 

plaintiff Aaronson occupied it, necessitating individual inquiry of the facts giving rise to 

the occupancy to determine class membership. Referring to the named plaintiffs, 

defendants asserted that Aaronson lacked standing and was an inadequate class 

representative as she never signed a lease agreement and she paid her rent directly to the 

lessee of Unit 307 until August 2007, after the property was removed from REAP. Also, 

Aaronson testified that while the property was in REAP, she never paid more than 50 

percent rent. Hendleman was an inadequate representative because the trial court had 

already ruled Hendleman‟s claims in the second cause of action were barred by the 

statute of limitations. 
8

Defendants also argued that individualized issues predominated defeating 

commonality. Evidence of retaliation and harassment raised individual issues about the 

circumstances of the communications between the landlord and each tenant and whether 

a tenant felt harassed and their individual reactions to rent demands, defendants averred. 

As for defects of the property, individual evidentiary issues existed about whether any of 

the alleged conditions interfered with each tenant‟s use of the services, how long the 

conditions affected each tenant, the type of harm suffered, the seriousness of the harm, 

and individual issues of causation. Defendants also argued that the LAHD cited many 

Code violations that were caused by tenants.2 

Finally, defendants‟ opposition to the certification motion urged that class action 

is not a superior method to other litigation approaches. 

6. The trial court’s ruling

The trial court requested supplemental briefing on the class definition explained 

above, and about whether, as the result of the outcome of defendants‟ lawsuit against the 

City of Los Angeles, defendants are collaterally estopped from arguing that alleged 

habitability problems were caused by class members. After further briefing and 

argument, the trial court denied plaintiffs‟ class certification motion. The court ruled the 

class was not ascertainable, individual questions of fact and law predominated, collateral 

estoppel did not bar defendants from raising the tenant misconduct defense, and class 

action was not a superior method of litigation. Plaintiffs filed their timely appeal. 

DISCUSSION

1. Principles of class certification

“Code of Civil Procedure section 382 authorizes class actions „when the question 

is one of a common or general interest, of many persons, or when the parties are 

numerous, and it is impracticable to bring them all before the court . . . .‟ The party 

 

2

To refute the named plaintiffs‟ habitability claims, defendants submitted 

declarations executed in 2010 and 2011 from 40 tenants averring that, in the particular 

declarant‟s opinion, there was no problem with the enumerated defects. The trial court 

did not mention these declarations in its ruling on the certification motion. 
9

seeking certification has the burden to establish the existence of both an ascertainable 

class and a well-defined community of interest among class members [citations]” (SavOn Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326), and “substantial 

benefits from certification that render proceeding as a class superior to the alternatives.” 

(Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (Brinker).)

As “ „trial courts are ideally situated to evaluate the efficiencies and practicalities 

of permitting group action, they are afforded great discretion in granting or denying 

certification.‟ ” (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at 

p. 326.) Accordingly, “in the absence of other error, a trial court ruling supported by 

substantial evidence generally will not be disturbed „unless (1) improper criteria were 

used [citation]; or (2) erroneous legal assumptions were made [citation]‟ [citation]. 

Under this standard, an order based upon improper criteria or incorrect assumptions calls 

for reversal „ “even though there may be substantial evidence to support the court‟s 

order.” ‟ [Citations.] Accordingly, we must examine the trial court‟s reasons for denying 

class certification” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435–436) and 

“ignore any unexpressed grounds that might support denial.” (Kaldenbach v. Mutual of 

Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 844.) “We may not reverse, however, 

simply because some of the court‟s reasoning was faulty, so long as any of the stated 

reasons are sufficient to justify the order. [Citation.]” (Ibid.) 

2. Commonality of law and fact 

The “ „ “community of interest requirement embodies three factors: 

(1) predominant common questions of law or fact; (2) class representatives with claims or 

defenses typical of the class; and (3) class representatives who can adequately represent 

the class.” ‟ [Citations.]” (Brinker, supra, 53 Cal.4th at p. 1021.) The “[p]laintiffs [have 

the] burden to establish the requisite community of interest and that „. . . questions of law 

or fact common to the class predominate over the questions affecting the individual 

members.‟ [Citation.]” (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 

1096, 1104.) “ „The ultimate question in every case of this type is whether . . . the issues 

which may be jointly tried, when compared with those requiring separate adjudication, 
10

are so numerous or substantial that the maintenance of a class action would be 

advantageous to the judicial process and to the litigants.‟ [Citations.]” (Id. at pp. 1104-

1105.) Thus, “[p]resented with a class certification motion, a trial court must examine 

the plaintiff‟s theory of recovery, assess the nature of the legal and factual disputes likely 

to be presented, and decide whether individual or common issues predominate.” 

(Brinker, supra, at p. 1025.) “Proof of most of the important issues as to the named 

plaintiffs” must “supply the proof as to all” members of the class. (Vasquez v. Superior 

Court (1971) 4 Cal.3d 800, 815.) 

Although on review we assume all causes of action have merit, “ „issues affecting 

the merits of a case may be enmeshed with class action requirements . . . .‟ [Citations.] 

When evidence or legal issues germane to the certification question bear as well on 

aspects of the merits, a court may properly evaluate them. [Citations.] The rule is that a 

court may „consider[ ] how various claims and defenses relate and may affect the course 

of the litigation‟ even though such „considerations . . . may overlap the case‟s merits.‟ 

[Citations.]” (Brinker, supra, 53 Cal.4th at pp. 1023-1024.) More specifically, “whether 

an element may be established collectively or only individually, plaintiff by plaintiff, can 

turn on the precise nature of the element and require resolution of disputed legal or 

factual issues affecting the merits. For example, whether reliance or a breach of duty can 

be demonstrated collectively or poses insuperable problems of individualized proof may 

be determinable only after closer inspection of the nature of the reliance required or duty 

owed and, in some instances, resolution of legal or factual disputes going directly to the 

merits. [Citations.]” (Id. at p. 1024.)

“Predominance is a factual question; accordingly, the trial court‟s finding that 

common issues predominate generally is reviewed for substantial evidence. [Citation.] 

We must „[p]resum[e] in favor of the certification order . . . the existence of every fact the 

trial court could reasonably deduce from the record . . . .‟ [Citation.]” (Brinker, supra, 

53 Cal.4th at p. 1022.) 

With these rules in mind, we turn to the trial court‟s ruling denying class 

certification. 
11

a. The third cause of action: The trial court did not err in ruling the claim for 

breach of the implied warranty of habitability is not amenable to common proof.

A warranty of habitability is implied in residential leases in California. (Green v. 

Superior Court (1974) 10 Cal.3d 616, 629.) “In most cases substantial compliance with 

those applicable building and housing code standards which materially affect health and 

safety will suffice to meet the landlord‟s obligations under the common law implied 

warranty of habitability.” (Id. at p. 637, italics added.) 

However, the mere “existence of a prohibited (uninhabitable) condition or other 

noncompliance with applicable code standards does not necessarily constitute a breach of 

the warranty of habitability.” (Friedman et al., Cal. Practice Guide: Landlord-Tenant 

(The Rutter Group 2012) § 3:39, p. 3-13, citing Green v. Superior Court, supra, 

10 Cal.3d at pp. 637-638.) “Whether the defect or code noncompliance is „substantial‟ 

(and thus a cognizable breach) or „de minimis‟ (no actionable breach) is determined on a 

case-by-case basis.” (Friedman et al., supra, § 3:40, p. 3-13.) “In considering the 

materiality of an alleged breach, both the seriousness of the claimed defect and the length 

of time for which it persists are relevant factors. Minor housing code violations standing 

alone which do not affect habitability must be considered de minimis and will not entitle 

the tenant to reduction in rent; and likewise, the violation must be relevant and affect 

the . . . common areas which [the tenant] uses.” (Hinson v. Delis (1972) 26 Cal.App.3d 

62, 70, disapproved on other grounds by Knight v. Hallsthammar (1981) 29 Cal.3d 46, 

55, fn. 7.) Stated otherwise, whether a particular defect or violation of a housing code 

constitutes a breach of the implied warranty of habitability depends on the severity and 

duration of the defect or violation. Breach is a rebuttable presumption affecting the 

burden of producing evidence. (Friedman et al., supra, §§ 3:46 to 3:47, pp. 3-14 to 3-

15.) 

Plaintiffs do not quarrel with the proposition that whether a defect or code 

violation is sufficiently substantial to constitute an actionable breach is determined on a 

case by case basis. They argue instead that a cause of action for breach of the warranty 

of habitability can be brought with evidence common to all tenants in a building. 
12

Plaintiffs claim their common evidence for their liability-only class includes the LAHD 

inspection reports, work logs, past due trash bills, and plaintiffs‟ testimony and 

photographs. The LAHD inspector declared that the fire-safety and weatherproofing 

violations “affect the entire building.” Plaintiffs note that this evidence is how any 

individual tenant would prove the landlord breached the warranty of habitability as to 

them. (Friedman et al., Cal. Practice Guide: Landlord-Tenant, supra, § 3:63 to 3:65, 

pp. 3-19 to 3-20.)3 It is important here to make the distinction between code violations 

and service reductions. The common-area code violations cited by the LAHD concerned 

weatherproofing and fire exit defects that triggered REAP, but not the alleged service 

reductions, i.e., trash, elevator, and security. In our view, the code violations and service 

reduction defects raise individualized problems of proof that go to the heart of the merits 

and defeat commonality.

Community of interest “means „each member must not be required to individually 

litigate numerous and substantial questions to determine his [or her] right to recover

following the class judgment.” (Washington Mutual Bank v. Superior Court (2001) 

24 Cal.4th 906, 913-914, italics added.) Although plaintiffs‟ proffered evidence raises a 

rebuttable presumption that there are code violations and service reductions having an 

impact on the common areas of the building, plaintiffs must nonetheless demonstrate that 

each defect is sufficiently substantial to be actionable. (Friedman et al., Cal. Practice 

 

3

The parties argue at length about defendants‟ affirmative defense that tenant 

misconduct caused the habitability problems. Among the reasons for defendants‟ 

opposition to class certification was the necessity of individualized evidence of particular 

tenants‟ misconduct. Plaintiffs argued that certification cannot be defeated by a defense. 

To the contrary, “[a] liability-only class certification may be denied . . . where there are 

defenses that require individualized inquiry into each class member‟s claim.” (Weil & 

Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012) 

§ 14:103.6, p. 14-74, citing In re Ford Motor Co. Ignition Switch Products (D.N.J. 1997) 

174 F.R.D. 332, 347.) Plaintiffs also argued that defendants were collaterally estopped 

from raising the question of tenant misconduct because they failed to raise the defense 

when they could have in an appeal before the LAHD. Because we agree with the trial 

court that class certification is defeated by the predominance of individual issues of 

liability, we need not address the collateral estoppel question.
13

Guide: Landlord-Tenant, supra, § 3:40, p. 3-13.) While the trial court recognized that the 

fire safety defects affected everyone in the building and three LAHD inspectors declared 

that the cited violations affected every apartment in the building, the evidence supports 

the trial court‟s finding that the alleged code violations and service reductions do not 

affect all of the tenants in the same manner or to the same degree. (Vasquez v. Superior 

Court, supra, 4 Cal.3d at p. 815.) As defendants demonstrated, some of the tenants have 

not noticed and are not affected by some of the alleged code violations and service 

reductions. The differences among the two named plaintiffs alone about the effect of the 

alleged code violations and reductions in service reveal the need for individual proof of 

impact on each plaintiff. For example, Hendleman and Aaronson report different 

problems with the trash bins and by the condition of the elevator. Some tenants do not 

use the elevator and so they would not be harmed by its intermittent failures. Security 

was not promised under the lease and the manner and extent to which a tenant is 

disturbed by defects in security differs. Weatherproofing problems may affect one tenant 

and “never be seen by those who live in another area of the building.” Whether and how 

each tenant is affected by the alleged code violations and service reductions, and the 

extent and type of harm suffered, so as to establish that these conditions are “substantial” 

and thus actionable, is not subject to common proof. 

Plaintiffs insist that they need not demonstrate the effect that the code violations 

have on each tenant because, citing Knight v. Hallsthammar, supra, 29 Cal.3d at page 54, 

they argue tenants need not have been aware that a code violation existed for a landlord 

to have breached the implied warranty of habitability. Knight stated “the fact that a 

tenant was or was not aware of specific defects is not determinative of the duty of a 

landlord to maintain premises which are habitable.” (Ibid., italics added.) But, the 

implied warranty of habitability “does not support an action for strict liability.” 

(Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1191, 1206.) The question here is 

not whether plaintiffs can by common proof demonstrate a breach of the duty, but 

whether they can demonstrate a breach that is sufficiently substantial to be actionable. 

(Green v. Superior Court, supra, 10 Cal.3d at pp. 637-638.) Certification of the class for 
14

this cause of action would necessarily include tenants who are unaware of and do not 

experience a service reduction, and would thus make the landlord strictly liable for the 

mere existence of a defect. This is not simply a question of calculating damages, as 

plaintiffs insist. The individual issues pervading this cause of action go to the question of 

each tenant‟s entitlement to recover. “[A] class action cannot be maintained where each 

member‟s right to recover depends on facts peculiar to his case.” (City of San Jose v. 

Superior Court (1974) 12 Cal.3d 447, 459.) Here, evidence of numerous, substantial, and 

individualized facts would be necessary for each tenant to establish his or her individual 

right to recover thus rendering class litigation inappropriate. (Wilens v. TD Waterhouse 

Group, Inc. (2003) 120 Cal.App.4th 746, 756; see also Basurco v. 2st Century Ins. Co. 

(2003) 108 Cal.App.4th 110, 119 [no certification where “the existence of [earthquake] 

damage, the cause of damage, and the extent of damage would have to be determined on 

a case-by-case basis”].) Put otherwise, for the same reason that, as plaintiffs concede, 

defects in an individual apartment are not amenable to common proof, defects that 

substantially impinge on only some tenants in the building require individualized 

evidence, particularly where there is demonstrated disagreement between the named 

plaintiffs.4 

In sum, the record contains substantial evidence to support the trial court‟s 

findings that individual issues predominate and the court employed proper criteria and 

legal assumptions in ruling that plaintiffs have not demonstrated the requisite 

commonality with respect to the third cause of action. 

 

4 On appeal, plaintiffs assert they are only seeking damages in the third cause of 

action under a contract theory, i.e., the difference between the rent paid and the rent that 

would have been reasonable (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real 

Property, § 627, p. 734), under which individualized “damages for discomfort and 

annoyance are not recoverable.” (Ibid.) However, as we conclude individual issues of 

liability predominate, we need not reach the question of damages.
15

b. The first cause of action: the trial court did not abuse its discretion in denying 

certification of the claim of illegal rent increases under the RSO for lack of commonality.

In the first cause of action under the RSO, plaintiffs allege that the landlord 

reduced services affecting the entire property without correspondingly reducing rent, 

which conduct constitutes a rent increase under the RSO (L.A. Mun. Code, § 151.02). 

They also allege that between February 2007 and June 2007, the property was in REAP 

with a corresponding 50 percent reduction in rent. Nonetheless, plaintiffs allege, 

defendants demanded, accepted, or retained more than the “Maximum Adjusted Rent 

from all of the tenants” in violation of Los Angeles Municipal Code section 151.04. That 

section reads, “It shall be unlawful for any landlord to demand, accept or retain more than 

the maximum adjusted rent permitted pursuant to this chapter or regulation or orders 

adopted pursuant to this chapter.” (L.A. Mun. Code, § 151.04(A).) The RSO defines 

“Maximum Adjusted Rent” as maximum rent “less any rent reductions . . . imposed 

pursuant to Section 162.00 et seq. [REAP].” (L.A. Mun. Code, § 151.02.) Plaintiffs rely 

on this section to argue the landlord violated the RSO for by demanding, accepting, or 

retaining, more than the maximum adjusted rent as determined by the LAHD, which by 

definition involved reductions imposed pursuant to REAP. 

The trial court found that by alleging reduced housing services, plaintiffs had 

injected the same individualized habitability questions raised in the third cause of action. 

We agree. The RSO defines housing services as “Services connected with the use or 

occupancy of a rental unit including, but not limited to, utilities (including light, heat, 

water and telephone) . . . the provision of elevator service, laundry facilities and 

privileges, common recreational facilities, janitor service, resident manager, refuse 

removal, furnishings, food service, parking and any other benefits privileges or 

facilities.” (L.A. Mun. Code, § 151.02.) As noted, defendants presented evidence that 

many tenants did not contract for the parking garage and its security, the two named 

plaintiffs report different reactions to the condition of the trash bins, and many tenants 

never use the elevator. Thus, as with the third cause of action for breach of the implied 

warranty of habitability, individual factual issues predominate.
16

c. The second cause of action: the trial court did not abuse its discretion by 

denying certification of plaintiffs’ retaliation claim for lack of commonality and lack of 

an adequate representative.

In the second cause of action, plaintiffs allege that after the property was placed in 

REAP, the landlord “harassed and retaliated against the tenants by demanding rent 

exceeding the reduced amounts,” by issuing notices falsely stating that the tenants were 

obligated to pay the full rent amount directly to the landlord, by issuing three-day notices 

to pay rent or quit, or by issuing notices falsely stating that the tenants owed the landlord 

hundreds and sometimes thousands of dollars in past due rent. 

The trial court denied certification of a class for the second cause of action 

because the “REAP program gives tenants the choice of paying full or reduced rent to the 

landlord or to the City” and defendants had shown that “some tenants voluntarily chose to 

continue paying their full rent to the landlord.” 

Plaintiffs contend the trial court‟s ruling denying class certification was based on 

an erroneous legal assumption because, they argue, a landlord of property in REAP 

“cannot accept more than the reduced rent.” For this proposition, plaintiffs cite Los 

Angeles Municipal Code section 151.04(A), which is a provision of the RSO. As noted, 

section 151.04 states: “It shall be unlawful for any landlord to demand, accept or retain 

more than the maximum adjusted rent permitted pursuant to this chapter or regulation or 

orders adopted pursuant to this chapter.” (L.A. Mun. Code, § 151.04(A), italics added.) 

While an RSO tenant may not acquiesce to paying more than the maximum adjusted rent 

permitted (Gombiner v. Swartz (2008) 167 Cal.App.4th 1365, 1372 [“a landlord cannot, 

even with the tenant‟s acquiescence or by mutual agreement, circumvent that which the 

law prohibits” in RSO section 151.04]), the RSO is contained in an entirely different 

chapter of the Municipal Code -- Chapter XV -- than REAP, which is found in Chapter 

XVI. Section 151.04(A) of the Los Angeles Municipal Code is not authority for 

plaintiffs‟ contention that the trial court made an erroneous legal assumption in ruling 

that tenants have the option of paying the full amount of rent to the landlord under REAP.
17

Plaintiffs argue it stands to reason that the landlord of REAP property should be 

precluded from demanding the full amount of rent lest landlords try to intimidate tenants. 

However, the City, who enacted the RSO Chapter XV, knew how to forbid landlords 

from demanding, accepting, or retaining rent in excess of the maximum adjusted rent

(L.A. Mun. Code, § 151.04), but noticeably did not enact a similar provision in REAP, 

Chapter XVI. To be sure, REAP does contain tenant protections. Landlords may not 

bring unlawful detainer actions on the basis of nonpayment of rent if the tenant is paying 

rent into the escrow account. (L.A. Mun. Code, § 162.09(A).) A landlord “who retaliates 

against a tenant for the tenant‟s . . . exercise of rights or duties under this article shall be 

liable in a civil action for damages.” (L.A. Mun. Code, § 162.09(C).) And, landlords 

“shall not increase the rent” for the current or subsequent tenants during the REAP period 

and for a certain time thereafter. (L.A. Mun. Code, § 162.09(B), italics added.) Yet, this 

last prohibition against increasing the rent, does not use the phrase “maximum adjusted 

rent,” as defined in section 151.02 and as referred to by section 151.04. Plaintiffs have 

not cited us to a provision of REAP that precludes landlords from accepting and tenants

from paying the full amount of rent notwithstanding his or her apartment is in REAP. 

Rich v. Schwab (1984) 162 Cal.App.3d 739, does not aid plaintiffs. There, the 

tenants sued their landlord for increasing rents to a mobile home park without giving 

90 days‟ notice in violation of Civil Code section 798.30 for the purpose of retaliating 

against the tenants for organizing and petitioning the city for rent control under 

Civil Code section 1942.5. (Rich v. Schwab, at p. 742.) Certification of a class of tenants 

was proper there because of the predominance of common questions of law and fact: The 

rent increase notice to all tenants in Rich violated Civil Code section 798.30. (Rich v. 

Schwab, at pp. 744-745.) Here, however, REAP does not preclude tenants from paying 

the full amount of rent to the landlord. Therefore, individual issues predominate about 

who paid the full amount voluntarily and who did so because they were intimidated.

More important, however, the trial court identified another obstacle to certification 

of the second cause of action, namely a problem of adequacy of representation. “ „ “The 

cases uniformly hold that a plaintiff seeking to maintain a class action must be a member 
18

of the class he claims to represent.” ‟ ” (Caro v. Procter & Gamble Co. (1993) 18 

Cal.App.4th 644, 663.) Hendleman‟s claim under the second cause of action is barred by 

the statute of limitations; and Aaronson was not a tenant between March and June 2007. 

As defined, a tenant is “any tenant, lessee, or occupant under a written lease or rental 

agreement, or any tenant, subtenant, sublessee or other person entitled to use or occupy a 

rental unit and who submitted one or more rental payments that were accepted by the 

Landlord.” Aaronson did not live in her apartment under a lease and she paid rent 

directly to the tenant of that apartment until August 2007, after the property was removed 

from REAP and beyond the proposed subclass period. Thus, there is no representative 

for the second cause of action. There was no error in denying the certification motion as 

to the second cause of action.

d. The fourth cause of action: The trial court did not abuse its discretion in 

denying certification of the nuisance cause of action for lack of commonality.

Plaintiffs alleged the landlord‟s harassment of tenants by issuing notices 

demanding rent, “as well as the defective conditions of the Property . . . constitute a 

nuisance” in that they are injurious to tenants‟ health and comfortable enjoyment of the 

property. In denying plaintiffs‟ certification motion, the trial court ruled that individual 

factual and legal issues predominate. We agree. 

“Code of Civil Procedure section 731 specifically authorizes an action by any 

person whose property is injuriously affected, or whose enjoyment of property is lessened 

by a nuisance, as the same is defined in Civil Code section 3479 (see also 47 Cal.Jur.3d, 

Nuisance, § 59, p. 299). Civil Code section 3479 defines a nuisance as „[a]nything which 

is injurious to health, or is indecent or offensive to the senses, or an obstruction to the 

free use of property, so as to interfere with the comfortable enjoyment of life or 

property . . . .‟ ” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.) “The 

statutory definition of nuisance appears to be broad enough to encompass almost any 

conceivable type of interference with the enjoyment or use of land or property.” (Ibid.) 

“ „It is settled that, regardless of whether the occupant of land has sustained physical 

injury, he may recover damages for the discomfort and annoyance of himself and the 
19

members of his family and for mental suffering occasioned by fear for the safety of 

himself and his family when such discomfort or suffering has been proximately caused 

by a trespass or a nuisance.‟ ” (Id. at p. 920.) The nuisance plaintiff must show “a 

substantial interference with the use and enjoyment of the premises not merely 

de minimis interference.” (Ibid., italics added) 

City of San Jose v. Superior Court, supra, 12 Cal.3d 447 involved the certification 

of a class of nuisance plaintiffs. There, the plaintiffs, who lived in the flight pattern of 

the San Jose airport, sued the city seeking recovery for diminution in the market value of 

their properties caused by airplane noise, vapor, dust, and vibration. (Id. at p. 453.) The 

Supreme Court vacated the order certifying a class, explaining: “the present action for 

nuisance and inverse condemnation is predicated on facts peculiar to each prospective 

plaintiff. An approaching or departing aircraft may or may not give rise to actionable 

nuisance or inverse condemnation depending on a myriad of individualized evidentiary 

factors. While landing or departure may be a fact common to all, liability can be 

established only after extensive examination of the circumstances surrounding each 

party. Development, use, topography, zoning, physical condition, and relative location 

are among the many important criteria to be considered. No one factor, not even noise 

level, will be determinative as to all parcels.” (Id. at pp. 460-461, italics added, fn. 

omitted.) 

Likewise here, as explained with respect to the third cause of action for breach of 

the implied warranty of habitability, even if the existence of the code violations and 

service reductions in the common areas of the property were subject to common proof, 

whether a tenant has suffered discomfort and annoyance from an intermittently operating 

elevator, defects in the garage security, trash, inoperable fire-exit door, or 

weatherproofing problems, or was intimidated by the landlord depends on facts specific 

to each particular tenant. Whether the nuisance is actionable can only be established after 

examination of the circumstances of each tenant, such as the location of each tenant‟s 

unit, whether and how much a particular tenant used the specific service or was affected 
20

by its reduction, or felt harassed by the landlord‟s demands for rent. (City of San Jose v. 

Superior Court, supra, 12 Cal.3d at p. 459.) 

Plaintiffs argue on appeal that the trial court omitted to discuss the possibility of 

certifying a remedy class for the prayer for injunctive relief. However, we must “ignore 

any unexpressed grounds” for denial of certification and need not reverse simply because 

the court failed to address the injunction issue where the court‟s stated reason was 

sufficient to justify the denial of the certification motion as to the fourth cause of action 

for nuisance. (Kaldenbach v. Mutual of Omaha Life Ins. Co., supra, 178 Cal.App.4th at 

p. 844.) 

e. The fifth cause of action: the trial court did not abuse its discretion in denying 

plaintiffs’ abuse of process claim for lack of numerosity.

Plaintiffs‟ fifth cause of action for abuse of process alleges that on April 12, 2007, 

the landlord issued three-day notices to pay rent or to quit to “several tenants residing at 

the Property” without intending to evict the recipients and without contemplating 

litigation, and that “many tenants to whom three-day notices were issued” paid more than 

the reduced rent amount imposed by the LAHD. (Italics added.) Certification of a class 

for this cause of action was inappropriate, according to the trial court, because among 

other things, the class definition proposed by the plaintiffs, all tenants from January 2005 

to September 2010, is far more expansive than the April 12, 2007 date. Plaintiffs offered 

to redefine the class to include a subclass of tenants who received notices in April and 

June 2007. The trial court properly concluded that this would restructure the class 

configuration as proposed in plaintiffs‟ motion for certification and plaintiffs had not 

justified the proposed subclass in terms of numerosity, ascertainability, commonality, and 

adequacy of representation. 

The record supports the trial court‟s ruling. For example, plaintiffs assert that 18 

members of the class received three-day notices and of those, a smaller amount, “many,” 

paid more than the REAP imposed rent. “For a class to be considered ascertainable, its 

members must have a plausible cause of action against the defendant. [Citation.] If 

multiple plaintiffs fail to meet this elementary standard, no ascertainable class exists, and 
21

a class action may not be maintained. [Citation.]” (American Suzuki Motor Corp. v. 

Superior Court (1995) 37 Cal.App.4th 1291, 1294-1295, disapproved on another point in 

Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 442-443.) 

f. Amendment

Both on appeal and during oral argument in the trial court, plaintiffs made 

repeated offers to redefine the class or subclass, or to certify a class with respect to 

certain allegations but not others, or damages only.5 Plaintiffs are essentially asking this 

court not to act as a court of review, but to rule on the class certification anew, based on 

representations made after plaintiffs filed their motion for certification. That is not the 

function of the appellate court. (Sav–On Drug Stores, Inc. v. Superior Court, supra, 

34 Cal.4th 319, 326; Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 435–436; 

Kaldenbach v. Mutual of Omaha Life Ins. Co., supra, 178 Cal.App.4th at p. 844.) 

Plaintiffs seeking to certify a class have the burden to demonstrate to the trial court

ascertainability, commonality, and adequacy of the class representatives. (Sav–On Drug 

Stores, Inc. v. Superior Court, supra, at p. 326.) Such showing is not made in argument 

or by adjusting, amending, or jettisoning various allegations or prayers in the complaint 

on the fly. Plaintiffs proposed so many amendments that they are effectively redefining 

their entire class action. If plaintiffs would like to reconsider the shape of their class and 

the class allegations, they must do so in the first instance in the trial court.

To summarize, the trial court‟s reasoning was correct and it did not use improper 

criteria or erroneous legal assumptions. As the result of our conclusion that the court did 

not abuse its discretion in denying certification of all five of plaintiffs‟ causes of action 

 

5

For example, plaintiffs‟ certification motion seeks to include a class of tenants 

“during any part of the time period of January 22, 2005 to the present,” i.e., September 

2010. However, both below and on appeal, plaintiffs repeatedly assert that they are only 

seeking damages for violations that the landlord did not timely correct for a 10 month 

period between May 2006 and March 2007 causing acceptance into REAP. Plaintiffs 

argue on appeal that the class could be redefined or a subclass could be certified around 

the dates. Plaintiffs have yet to explain this discrepancy in dates, although the trial court 

raised it in its ruling denying certification. 
22

on the basis that individual issues predominate, we need not address plaintiffs‟ other 

challenges to the trial court‟s ruling. (Kaldenbach v. Mutual of Omaha Life Ins. Co., 

supra, 178 Cal.App.4th at p. 844.) 

DISPOSITION

The order is affirmed. Respondents to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.