1

Filed 7/21/15 Needelman v. DeWolf Realty Co. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION TWO

JEFFREY A. NEEDELMAN et al.,

Plaintiffs and Appellants,

v.

DEWOLF REALTY CO., INC. et al.,

Defendants and Respondents.

 A141306

 (San Francisco City and County 

 Super. Ct. No. CGC13531803)

After filing an answer to an unlawful detainer action, tenant Jeffrey A. Needelman 

(Needelman) entered into a settlement agreement, which included a stipulation for 

judgment, with DeWolf Realty Co., Inc. (DeWolf), the property management company, 

and M&H, L.P. (M&H),1 the property owner. Needelman violated the agreement and the 

trial court entered a stipulated judgment giving DeWolf and M&H (collectively, the 

lessors) damages, costs, fees, and possession of the property. 

Subsequently, Needelman and his daughter, Ona Needelman (Ona), sued the 

lessors for their damaged and missing personal property, which had remained in the 

rental residence after Needelman vacated the premises. Needelman and Ona 

(collectively, the Needelmans) also set forth other claims related to the prior unlawful 

detainer action and stipulated judgment. The trial court sustained the lessors’ demurrer to 

the Needelmans’ first amended complaint without leave to amend, and the Needelmans 

 

1 The property owner was erroneously sued as M&MH, L.P. 
2

appeal.2 We conclude that the doctrine of res judicata bars all of Needelman’s claims and 

Ona, who was not a tenant and did not reside in the rental unit, cannot state a claim 

against the lessors. Accordingly, we affirm the judgment. 

BACKGROUND

Needelman entered into a one-year lease beginning on April 1, 2008, with the 

management company of DeWolf for an apartment on Greenwich Street in San Francisco 

(Greenwich apartment). DeWolf is an agent of M&H, the owner of the apartment 

building. After the lease expired on March 31, 2009, Needelman remained as a monthto-month tenant. 

On December 22, 2011, DeWolf served Needleman with a three-day notice to 

quit. The notice stated that his tenancy was being terminated because of Needelman’s 

“creating an unreasonable interference with the comfort, safety or enjoyment . . . of the 

other residents” of the complex. The notice listed eight separate incidents between May 

2011 and December 2011, which involved his damaging the premises, disturbing 

neighbors and other tenants in the building, and running around naked and/or in boxer 

shorts. DeWolf terminated Needelman’s tenancy pursuant to the San Francisco Rent 

Stabilization and Arbitration Ordinance (the Ordinance). 

Needelman did not quit the premises, and the lessors filed an unlawful detainer 

action against him on January 3, 2012. On January 27, 2012, Needelman filed an answer, 

asserting that statements in the complaint were false. He also set forth various 

affirmative defenses, including breach of the warranty of habitability, violation of the 

Ordinance, payment of all rent that was due, discrimination based on Needelman’s sexual 

orientation and religion, laches, and retaliation for requesting repairs. 

On March 12, 2012, the parties reached a settlement and signed the stipulation for 

entry of judgment. The stipulation permitted Needelman to remain on the premises until 

September 30, 2012. Paragraph No. 2 stated that Needelman was “to abide by each and 

 

2 Needelman, an attorney, is in propria persona; he is representing Ona in this 

appeal. 
3

every term and condition of his lease, except the obligation to pay rent, and specifically 

not to violate any of the house rules and/or disturb or interfere with the quiet enjoyment 

of the other tenants.” Paragraph No. 5 specified that if Needelman “fails to abide by the 

terms and conditions of his lease and other terms called for in paragraph No. 2, in the 

manner and by the time frame stated herein, . . . , then upon 24 hours oral or written 

notice to [Needelman], . . . , [the lessors] will be entitled to submit an Ex Parte 

Application for a Judgment Pursuant to Stipulation for possession of the premises . . . , as 

well as for money damages for any of the rent that may be due and owing or any of the 

attorney’s fees and costs stated in paragraphs 1 [and] 2 above. Also, [the lessors] will be 

entitled to a money judgment for another $500.00 for attorney’s fees for the additional 

work involved as well as $185.00 for costs incurred.” A handwritten asterisk was next to 

paragraph No. 5, and in the upper margin of this page, it explained: “*A verified 

complaint signed under penalty of perjury by another tenant.” 

The settlement also provided that Needelman “waives any claims he may have, 

which [the lessors] assert do not exist, to bring an attempted wrongful eviction against 

[the lessors] or any action in any way arising out of or concerned with his tenancy . . . .” 

The next paragraph spelled out that Needelman “agrees that any of his personal property 

remaining in the unit after he vacates or is evicted therefrom shall be considered 

abandoned property, and [the lessors] shall be entitled to dispose of it without any notice 

to [Needelman] or his attorney.” 

On May 14, 2012, the lessors notified Needelman orally and in writing of their 

intent to submit an ex parte application for a judgment pursuant to their stipulation. Two 

days later, on May 16, they filed their ex parte application. At the hearing, which 

Needelman did not attend, the lessors supplied the court with a declaration of Bryan 

Silver, a tenant of the apartment building on Greenwich Street. He stated that on April 

25, 2012, approximately 4:00 a.m., loud screaming and banging awakened him; he 

looked outside and observed a naked Needelman banging on the apartment building 

common area door. The police arrived and told Silver that four people in the 

neighborhood had called to report this disturbance. The lessors also submitted a 
4

declaration by Landa Robertson, the property manager for the apartment building on 

Greenwich Street and employed by DeWolf. She stated that she received a complaint 

from a tenant that Needelman “was observed naked banging on his door . . . .” She 

contacted the night manager at a neighboring drugstore and that person confirmed that 

Needelman had entered the drugstore approximately 4:00 a.m., on April 25; he was 

“naked and appeared to be on drugs.” The drugstore manager had a copy of the 

videotape depicting the incident. The lessors also submitted the police report 

documenting the incident. 

On May 16, 2012, the trial court approved the stipulated judgment and gave the 

lessors possession of the Greenwich apartment. As specified in the stipulation, the court 

awarded the lessors $8,955.51 in damages, $500 in attorney fees, and $185 in costs for a 

total of $9,640.51. 

The following day, the trial court issued an execution for possession of the real 

property. Six days later, on May 23, 2012, a notice to vacate and writ of possession were 

placed on the Greenwich apartment. The sheriff executed the writ of possession, locking 

Needelman out of the property, on May 30. 

Prior to the sheriff’s executing the writ of possession, on May 21, 2012, 

Needelman filed a motion in the superior court moved pursuant to Code of Civil 

Procedure section 473, subdivisions (b) and (d), to set aside the ex parte judgment. 

The trial court on July 23, 2012, denied Needelman’s motion to set aside the 

judgment. The court summarized Needelman’s arguments under Code of Civil Procedure 

section 473, subdivision (b), as follows: Needelman “first argues that because he had 

other obligations to attend to his failure to appear at the ex-parte hearing to oppose [the 

lessors’] application constitutes ‘surprise’ or ‘inadvertence.’ [Needelman] fails to cite 

any legal authority for such proposition.” Needleman “then argues that he made a written 

request for continuance to [the lessors], which he felt had to be honored in light of his 

other obligations. However, [Needelman] failed to provide any evidence of such request, 

putting [Needelman’s] credibility in question.” With regard to Needelman’s argument 

under Code of Civil Procedure section 473, subdivision (d), that the judgment was void 
5

because the stipulation required entry of judgment “only if another tenant filed a 

[v]erified [c]omplaint in a separate lawsuit against” Needelman, the court rejected this 

interpretation of the stipulation. (Italics added.) The court found the “corroborated” 

declaration of Silver, signed under penalty of perjury, sufficient evidence under 

paragraph No. 5 of the stipulation for entry of judgment. 

Needelman appealed. The appellate division of the superior court affirmed the 

judgment on March 14, 2013. 

On May 30, 2013, the Needelmans filed a complaint against the lessors for, among 

other things, breach of contract, wrongful eviction, and conversion. The lessors 

demurred, and the trial court sustained the demurrer to the complaint with leave to 

amend. 

The Needelmans filed a first amended complaint against the lessors on September 

20, 2013; they set forth causes of action for negligence, intentional tort, wrongful 

eviction, conversion, unfair competition, intentional and negligent infliction of emotional

distress, breach of warranty of habitability, violation of civil forfeiture laws, and breach 

of contract. The pleading alleged that Needelman was a resident of the building on 

Greenwich Street, and had a lease with DeWolf. It further asserted that Needelman’s 

daughter, Ona, lived overseas and had left her personal property in Needelman’s 

Greenwich apartment. The first amended complaint asserted that the allegations in the 

three-day notice to quit were false. After vacating the Greenwich apartment, the lessors, 

according to the pleading, gave Needelman his personal property, but much of it was 

missing or damaged. The first amended complaint sought compensatory and punitive 

damages and an injunction. 

The lessors demurred to the first amended complaint. The trial court issued a 

tentative ruling sustaining the lessors’ demurrer without leave to amend. On November 

6, 2013, the court adopted its tentative ruling. 

On November 21, 2013, the Needelmans moved for reconsideration. They argued, 

among other things, that the order sustaining the demurrer erroneously stated that 

Needelman did not contest the tentative ruling. 
6

On January 8, 2014, the trial court filed its amended order. The court stated that 

Needelman had appeared and stated that he wished to contest the tentative ruling. He 

asked for a continuance, which the court granted. The Needelmans did not appear at the 

continued hearing, and the court adopted its tentative ruling without oral argument on the 

matter. The court sustained the lessors’ demurrer without leave to amend. 

Judgment in favor of the lessors was entered on January 8, 2014; notice of entry of 

the judgment was filed on January 14, 2014. On March 14, 2014, the Needelmans filed 

their notice of appeal. 

DISCUSSION

I. Standard of Review

“On appeal from a judgment dismissing an action after sustaining a demurrer 

without leave to amend, the standard of review is well settled. The reviewing court gives 

the complaint a reasonable interpretation, and treats the demurrer as admitting all 

material facts properly pleaded. [Citations.] The court does not, however, assume the 

truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be 

affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ 

[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff 

has stated a cause of action under any possible legal theory. [Citation.] And it is an 

abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows 

there is a reasonable possibility any defect identified by the defendant can be cured by 

amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-

967.) 

II. The Doctrine of Res Judicata Bars all of Needelman’s Claims

The settlement agreement specifically provided that Needelman waived “any 

claims he may have, which [the lessors] assert do not exist, to bring an attempted 

wrongful eviction against [the lessors] or any action in any way arising out of or 

concerned with his tenancy . . . .” It also stated that Needelman “agrees that any of his 

personal property remaining in the unit after he vacates or is evicted therefrom shall be 
7

considered abandoned property, and [the lessors] shall be entitled to dispose of it without 

any notice to [Needelman] or his attorney.” 

The lessors contend that the doctrine of res judicata bars all of Needelman’s 

causes of action because all of his claims could have been raised as defenses in the 

unlawful detainer action and/or were addressed and settled by the stipulated judgment. 

Needelman responds that res judicata does not apply to those causes of action that are 

predicated on conduct occurring after entry of the stipulated judgment; he also contends 

that res judicata is inapplicable to unlawful doctrine actions. For the reasons discussed 

below, we conclude that the doctrine of res judicata bars Needelman’s 10 causes of 

action.3

A. Res Judicata and the Rules for Interpreting the Stipulated Judgment 

Code of Civil Procedure section 1908 codifies the res judicata doctrine, and 

provides that “a judgment or final order in an action or special proceeding” is conclusive 

as to “the matter directly adjudged.” (Id., subd. (a)(2).) “Res judicata, or claim 

preclusion, prevents relitigation of the same cause of action in a second suit between the 

same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 

Cal.4th 888, 896-897.) The doctrine applies when (1) the issues decided in the prior 

adjudication are identical with those presented in the later action; (2) there was a final 

judgment on the merits in the prior action; and (3) the party against whom the plea is 

raised was a party or was in privity with a party to the prior adjudication. (Pollock v. 

University of Southern California (2003) 112 Cal.App.4th 1416, 1427.) The party 

asserting issue preclusion bears the burden of establishing these requirements. (Lucido v. 

 

3 The 10 causes of action in the first amended complaint are all on behalf of 

Needelman. As noted, these causes of action are: negligence, intentional tort, wrongful 

eviction, conversion, unfair competition, intentional and negligent infliction of emotional 

distress, breach of warranty of habitability, violation of civil forfeiture laws, and breach 

of contract. Five of these causes of action are also on behalf of Ona. We discuss the 

application of the res judicata doctrine only as to Needelman’s claims. Ona was not a 

party to the unlawful detainer action and lessors do not argue that she was in privity with 

Needelman.
8

Superior Court (1990) 51 Cal.3d 335, 341.) Here, Needelman does not dispute that he 

was the party in the prior adjudication but maintains the lessors did not establish that the 

first two requirements were satisfied. 

The question whether the issues decided in the prior adjudication are identical to 

the ones raised by Needelman’s lawsuit requires us to interpret the stipulated judgment. 

When interpreting the stipulated judgment, we use ordinary contract principles and, in the 

absence of extrinsic evidence, we may interpret it as a matter of law. (Jamieson v. City 

Council of the City of Carpinteria (2012) 204 Cal.App.4th 755, 761.) 

Here, the stipulated judgment unambiguously provided that Needelman waived

any claims for wrongful eviction “or any action in any way arising out of or concerned 

with his tenancy . . . .” Furthermore, the stipulated judgment clearly spelled out that he 

agreed that any personal property remaining in the residence after he vacated or was 

evicted “therefrom shall be considered abandoned property, and [the lessors] shall be 

entitled to dispose of it without any notice to [Needelman] or his attorney.” 

B. Claims Based on Conduct Following the Unlawful Detainer Action

Needelman argues that five of his 10 causes of action were based on conduct 

occurring after entry of the judgment and concludes that these claims were therefore not 

related to the unlawful detainer action. We can quickly dispose of this argument. 

All of Needelman’s causes of action, including the five based on conduct 

occurring after the judgment, were based on allegations that the lessors included false 

statements in the three-day notice in the underlying unlawful detainer action, that they 

engaged in wrongful conduct in bringing the unlawful detainer action and in applying for 

an ex parte judgment pursuant to the stipulation, and that they damaged or did not return 

Needelman’s personal property after forcing him to leave the Greenwich apartment. As 

noted, the settlement agreement specifically, and unambiguously, provided that 

Needelman waived any causes of action related to any alleged wrongful eviction or 

related to his tenancy at the Greenwich apartment. It also provided that any of the 

personal property remaining after Needelman vacated or was evicted would be 
9

considered abandoned and that the lessors were entitled to dispose of it without any 

notice to Needelman. 

Needelman does not seriously dispute that his claims were within the scope of the 

stipulated judgment or were adjudicated at the ex parte hearing. It is immaterial that 

some of Needelman’s claims—such as damage to his personal property left in the 

residence after his eviction—were based on actions taken by the lessors after he signed 

the agreement or after entry of the stipulated judgment. These claims were based on 

conduct addressed and settled by the stipulated judgment. 

C. The Application of Res Judicata to Unlawful Detainer Actions

Needelman’s principal argument is that a stipulated judgment arising from a 

summary unlawful detainer proceeding has limited res judicata effect. (See, e.g., Vella v. 

Hudgins (1977) 20 Cal.3d 251 (Vella) [after tenant was evicted, landlord could not use 

res judicata and collateral estoppel to bar tenant’s fraud action].) He maintains that even 

if his claims could have been settled in the unlawful detainer action, he signed the 

stipulation prepared by counsel for the lessors prior to trial and never had an opportunity 

to litigate the matter. He also stresses that he never had an opportunity to submit 

evidence at the ex parte hearing. 

Needelman relies on language in Vella, supra, 20 Cal.3d 251 to contend that the 

res judicata effect of an unlawful detainer judgment is “very limited . . . and will not 

prevent one who is dispossessed from bringing a subsequent action to resolve questions 

of title [citations], or to adjudicate other legal and equitable claims between the parties.” 

(Id. at p. 255.) He contends that affirmative defenses can be raised as claims for 

affirmative relief in a subsequent action unless they were litigated and he never had an 

opportunity to litigate the unlawful detainer action and he did not have a full and fair 

hearing on the lessors’ claim that he violated the stipulated agreement. 

Needelman incorrectly claims that he never had an opportunity to litigate the 

unlawful detainer action. He appeared in the unlawful detainer action when he filed his 

answer. (Code Civ. Proc., § 1014 [“A defendant appears in an action when the defendant 

answers”]; California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346, 352 
10

[answering the merits of a complaint constitutes a general appearance in the action].) 

Furthermore, he had an opportunity to litigate his defenses to the unlawful detainer 

action; instead, he decided to settle. Counsel for the lessors might have prepared the 

settlement agreement but Needelman is an attorney and cannot claim that he did not 

understand the significance of signing the stipulation. 

Under California law, a “judgment entered without contest, by consent or 

stipulation, is usually as conclusive a merger or bar as a judgment rendered after trial.” 

(7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 372, p. 996; accord, Victa v. Merle 

Norman Cosmetics, Inc. (1993) 19 Cal.App.4th 454, 460-461; De Weese v. Unick (1980) 

102 Cal.App.3d 100, 105.) Accordingly, Needelman cannot now relitigate claims within 

the scope of the stipulated settlement; claims that could have been litigated in the 

unlawful detainer action are now barred. (See 7 Witkin, Cal. Procedure (4th ed. 1997) 

Judgment, § 369, p. 939 [unlawful detainer judgment’s res judicata effect applies to 

affirmative defenses that would preclude removal of the tenant].)

Similarly, Needelman’s claim that he had no opportunity to oppose the lessors’ 

evidence at the ex parte hearing is inaccurate. He was given proper notice of the hearing 

but chose not to attend. Failing to participate or attend the hearing is not the same as not 

having an opportunity to litigate. “The doctrine of res judicata, whether applied as a total 

bar to further litigation or as collateral estoppel, ‘rests upon the sound policy of limiting 

litigation by preventing a party who has had one fair adversary hearing on an issue from 

again drawing it into controversy and subjecting the other party to further expense in its 

reexamination.’ ” (Vella, supra, 20 Cal.3d at p. 257.) Needelman cannot now belatedly 

attempt to challenge the evidence at the ex parte hearing, which showed that he violated 

the stipulation.

As noted, Needelman appeared in the unlawful retainer action and chose to sign 

the stipulated agreement, which specifically waived any claims related to his personal 

property left at the residence, as well as all his defenses to the unlawful retainer action. 

These factors distinguish Needelman’s situation from that of the litigants in many of the 

cases he cites in his appellate briefs. (See, e.g., Moriarty v. Laramar Management Corp. 
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(2014) 224 Cal.App.4th 125, 138-140 [default judgment in unlawful detainer action did 

not preclude tenant’s claims for breach of warranty of habitability and wrongful eviction 

based on violating the Ordinance and these claims not subject to Code Civ. Proc.,

§ 425.164]; Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1254 [unlawful detainer 

judgment did not preclude tenant’s subsequent wrongful eviction claims because the 

stipulation did not “manifest the objective intention of the parties to award permanent 

possession to [the landlord] or to constitute a waiver of the [tenants’] right to reoccupy 

the apartment”]; Landeros v. Pankey (1995) 39 Cal.App.4th 1167, 1173-1174 [collateral 

estoppel no bar to issue that was not expressly within stipulated judgment in prior

unlawful detainer action and could not have been raised in that action; stipulated 

judgment in unlawful detainer action did not bar alleged breach of warranty of 

habitability]; Pelletier v. Alameda Yacht Harbor (1986) 188 Cal.App.3d 1551, 1557 

[stipulated judgment without preclusive effect where no mention of intention to 

relinquish subject claims].) In contrast to the cases relied upon Needelman, here, 

Needelman did appear and litigate the unlawful detainer action and the stipulated 

judgment specifically settled the claims he is now attempting to relitigate. 

Needelman relies on Ben-Shahar v. Pickart (2014) 231 Cal.App.4th 1043 to argue 

that the trial court did not have authority to enforce the stipulated judgment in the 

unlawful detainer proceedings. This case held that a tenant’s complaint for breach of a 

settlement agreement reached after an unlawful detainer proceeding was not based on 

“protected activity” under the anti-SLAPP statute. The defendant initiated unlawful 

detainer proceedings and, at the hearing, the defendant informed the court he intended to 

move into the unit with his family. (Ben-Shahar, at p. 1047.) The court ruled that the 

plaintiff had to vacate and that the defendant had acted in good faith. (Id. at pp. 1047-

1048.) The parties entered into an agreement; the plaintiff promised to vacate and the 

defendants promised to comply with the city rent control ordinance. (Ben-Shahar, at 

 

4 This statute is commonly referred to as the anti-SLAPP (strategic lawsuit against 

public participation) statute.
12

p. 1048.) Subsequently, the plaintiff requested that the trial court find in the unlawful 

detainer proceedings that the defendants had breached the unlawful detainer settlement. 

(Ibid.) The trial court indicated that it could not consider the plaintiff’s claims in the 

unlawful detainer proceedings; it could undertake consideration of the merits only if the 

case were reclassified from limited to unlimited. (Ibid.)

Needelman maintains that here, as in Ben-Shahar v. Pickart, supra, 231 

Cal.App.4th 1043, “the unlawful detainer court did not have the authority to adjudicate 

violations of the unlawful detainer settlement.” He completely ignores that in BenShahar, the plaintiff did not seek to have the court enter a judgment pursuant to a 

stipulation, as was done in this case, but was seeking to have the court adjudicate a new 

and different claim. As repeatedly stressed, Needelman signed a “Stipulation for 

Judgment,” and a court has the authority to enter judgment in accordance with the 

contractual agreement of the parties. (See, e.g., City of Gardena v. Rikuo Corp. (2011) 

192 Cal.App.4th 595, 600.) “ ‘[B]y consenting to the judgment or order the party 

expressly waives all objection to it, and cannot be allowed afterwards, on appeal, to 

question its propriety, because by consenting to it he has abandoned all opposition or 

exception to it.’ ” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400.) 

“ ‘The doctrine of res judicata rests upon the ground that the party to be affected

. . . has litigated, or had an opportunity to litigate the same matter in a former action in a 

court of competent jurisdiction, and should not be permitted to litigate it again to the 

harassment and vexation of his opponent. Public policy and the interest of the litigants 

alike require that there be an end to litigation.’ ” (Fairchild v. Bank of America (1958) 

165 Cal.App.2d 477, 482, italics added.)

Here, Needelman had the opportunity to litigate the unlawful detainer action and 

all of his claims were based on defenses that could have been raised in this action or were 

specifically addressed and settled in the stipulated judgment. Accordingly, the doctrine 

of res judicata bars all of his claims. 
13

D. No Abuse of Discretion

Needelman asserts that he can amend his fourth cause of action for conversion to 

set forth claims for breach of a bailment agreement, negligent bailment, and loss and 

destruction of his property. For the reasons already extensively discussed, the doctrine of 

res judicata bars his claim of loss and destruction of his property. 

Needelman cites no authority to support his bailment claims.5 He simply 

references one paragraph in the first amended complaint and then declares with no 

analysis that this paragraph constitutes a bailment agreement. The paragraph in the 

pleading upon which he relies indicates that counsel for the lessors sent him the following 

e-mail on June 25, 2012: “ ‘If you wish to pay the removal and storage costs from May 

30, 2012[,] to [whenever] you are ready to pick up and remove everything (all of the 

abandoned property you left in the unit when you were evicted on May 30, 2012) from its 

present storage location, you may arrange it with me directly on my return or via email if 

you are able to pay the costs earlier than July 2, 2012.’ ” 

It is the “plaintiff’s burden to show the reviewing court how the complaint can be 

amended to state a cause of action.” (Michaelian v. State Comp. Ins. Fund (1996) 50 

Cal.App.4th 1093, 1105.) Needelman has not provided any explanation for how the 

foregoing paragraph satisfies the requirements for a bailment contract or what allegations 

demonstrate a breach or negligent breach of that contract.6 

 

5 “In a broad sense a bailment is the delivery of a thing to another for some 

special object or purpose, on a contract, express or implied, to conform to the objects or 

purposes of the delivery which may be as various as the transactions of men. [Citation].” 

(H.S. Crocker Co., Inc. v. McFaddin (1957) 148 Cal.App.2d 639, 643.) Bailments may 

be voluntary or involuntary but “[n]o bailment can be implied where it appears it was the 

intention of the parties, as derived from their relationship to each other and from the 

circumstances of the case, that the property was to be held by the party in possession in 

some capacity other than as bailee.” (Id. at p. 644.)

6 In an action for breach of a bailment contract, the bailor must prove that the 

agreement is a bailment contract, the property was deposited with the bailee, a demand 

was made for the property, and the bailee failed to return the property. (Gebert v. Yank 

(1985) 172 Cal.App.3d 544, 551-552.) 
14

It is not this court’s role to construct arguments that would undermine the lower 

court’s judgment and defeat the presumption of correctness. Rather, an appellant is 

required to present a cognizable legal argument in support of reversal of the judgment 

and when the appellant fails to support an issue with pertinent or cognizable argument, “it 

may be deemed abandoned and discussion by the reviewing court is unnecessary.” 

(Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) Issues 

not supported by argument or citation to authority are forfeited. (See, e.g., People ex rel. 

Reisig v. Acuna (2010) 182 Cal.App.4th 866, 873; Jones v. Superior Court (1994) 26 

Cal.App.4th 92, 99.) 

The trial court permitted Needelman to amend his pleading after the first demurrer 

and it did not abuse its discretion in sustaining the demurrer without leave to amend after 

Needelman failed to remedy the defects. Needelman has not demonstrated that he can 

amend his pleading to state a cause of action outside the scope of the unlawful detainer 

action and stipulated judgment. 

III. The Waivers in the Stipulation Do Not Violate Public Policy

On appeal, Needelman maintains that the stipulated judgment violated his due 

process rights because it permitted the lessors to obtain a judgment against him under 

specified conditions after giving him only 24 hours notice. The lessors maintain that we 

should disregard this argument because he failed to raise it in the trial court.

As a general rule, a constitutional issue in civil cases must be raised at the earliest 

opportunity or it will be deemed waived. (See Hershey v. Reclamation Dist. No. 108 

(1927) 200 Cal. 550, 564.) Although we have the discretion to apply this general rule, we 

will consider the merits of Needelman’s claim since it is based on undisputed facts and 

the lessors had an opportunity to address this argument in their appellate brief. 

“ ‘The fundamental requisite of due process of law is the opportunity to be heard.’ 

[Citation.] The hearing must be ‘at a meaningful time and in a meaningful manner.’ 

[Citation.] In the present context these principles require that a recipient have timely and 

adequate notice . . . .’ ” (Goldberg v. Kelly (1970) 397 U.S. 254, 267.) This means a 

litigant must be given “the opportunity to present reasons, either in person or in writing, 
15

why proposed action should not be taken . . . .” (Cleveland Board of Education v. 

Loudermill (1985) 470 U.S. 532, 546.) Needelman stresses that the United States 

Supreme Court has held that the opportunity to be heard is required before deprivation of 

a protected interest. (See United States v. James Daniel Good Real Property (1993) 510 

U.S. 43, 46, 53 [absent exigent circumstances, due process clause requires government in 

civil forfeiture case from seizing real property without providing owner notice and

opportunity to be heard]; Fuentes v. Shevin (1972) 407 U.S. 67, 85 [prejudgment replevin 

statutes of Florida and Pennsylvania requiring no prior hearing before seizure of goods 

were unconstitutional].) 

Here, the provision in the stipulation did not deprive Needelman of due process. 

The stipulation required that he be given 24 hours notice of an ex parte motion for a 

judgment pursuant to stipulation. Indeed, on May 14, 2012, the lessors notified 

Needelman orally and in writing of their intent to submit an ex parte application for a 

judgment pursuant to stipulation, and they filed such an application two days later on 

May 16. Needelman complains that he was unable to attend the hearing but he had 

agreed to his receiving shortened notice. Furthermore, according to evidence Needelman 

submitted to the trial court, he did not attend the hearing because he was faced with a 

choice between appearing in response to the ex parte application or meeting his other 

work deadlines; he chose to meet his deadlines rather than appear at the hearing. 

Needelman thus had notice and an opportunity to oppose the application; the stipulated 

judgment did not violate his due process rights. 

Needelman argues, without citing any authority, that Code of Civil Procedure 

section 664.6 requires a noticed motion as opposed to an ex parte motion. Code of Civil 

Procedure section 664.6 provides: “If parties to pending litigation stipulate, in a writing 

signed by the parties outside the presence of the court or orally before the court, for 

settlement of the case, or part thereof, the court, upon motion, may enter judgment 

pursuant to the terms of the settlement. . . .” 

Needelman’s reliance on Code of Civil Procedure section 664.6 is misguided. The 

lessors did not bring a motion under this section, but sought judgment as specifically 
16

provided for in the settlement agreement. Here, paragraph No. 5 of the settlement 

agreement specifically permitted, upon 24 hours notice, an ex parte application for a 

judgment pursuant to the terms of the stipulation. Furthermore, section 664.6 of the Code 

of Civil Procedure does not on its face require a noticed motion. The words “upon 

motion” generally mean a request of a party. (See Oppenheimer v. Deutchman (1955) 

132 Cal.App.2d Supp. 875, 879.)

Needelman extensively discusses the concurring opinion of Acting Presiding 

Justice Staniforth in Welsch v. Goswick (1982) 130 Cal.App.3d 398. Justice Staniforth 

concluded that the stipulation in Welsch violated one of the party’s constitutional right to 

privacy and therefore the stipulated injunctive judgment was unenforceable. (Welsch, at 

pp. 410-412.) This concurrence is not germane to this appeal because the stipulation in 

the present case, unlike the stipulation in Welsch, did not violate Needelman’s 

constitutional rights. 

Needelman also relies on Little v. Sanchez (1985) 166 Cal.App.3d 501, but this 

case, too, is unavailing. In Little, the record showed that the property owner had prepared 

documents in English that resembled official court forms; the documents “were captioned 

‘STIPULATION FOR JUDGMENT UNLAWFUL DETAINER.’ ” (Little, at p. 504.) 

The tenants, who did not speak English, signed the documents, and thereby agreed that 

the landlord was entitled to immediate possession of their homes and the execution “was 

to be ‘stayed’ only after the tenants, in essence, had made full payment of all their 

arrearages. More importantly, this stay was thereafter to remain contingent upon the 

tenants paying to respondent ‘on the 1st of each and every month [an amount that often 

far exceeded their scheduled rent] as consideration for the stay herein so long as 

defendant(s) remain in possession of said premises, no new tenancy being created by said 

payment.’ ” (Id. at p. 504.) The tenants provided declarations that they were unaware of 

the nature and effect of these stipulations and the landlord never challenged the truth of 

these declarations. (Ibid.) The reviewing court held that these stipulations were void as 

they dispossessed the tenants without notice or hearing in the event they failed to pay 

their monthly installment. (Id. at p. 505.) In contrast, here, the record contains no 
17

evidence that Needelman did not understand the stipulation. More significantly, unlike 

the situation in Little, the stipulation in the present case did not allow dispossession 

without notice or a hearing. To the contrary, the stipulation required an ex parte hearing 

to determine whether judgment pursuant to the stipulation should be entered. 

Accordingly, we reject Needelman’s claim that the stipulation violated his due 

process rights. 

IV. The Waivers in the Stipulation Do Not Violate Civil Code Section 1942.1

In one sentence in his opening brief and in two paragraphs in his reply brief, 

Needelman asserts that paragraph No. 9 of the stipulated judgment is contrary to public 

policy and void under Civil Code section 1942.1. He claims that he could not waive his 

claim to any breach of the warranty of habitability. 

Paragraph No. 9 provides: “The parties agree that each of the parties has been 

fully advised of the contents of California Civil Code [s]ection 1542, and said section and 

its benefits are expressly waived. Section 1542 reads as follows: [¶] ‘Section 1542 

(General Release-Claims Extinguished) [¶] A general release does not extend to claims 

which the creditor does not know or suspect to exist in its favor at the time of executing 

the release, which, if known by him, must have materially affected his settlement with 

debtor.’ [¶] Specifically, the parties agree that [Needelman] waives any claims he may

have, which [the lessors] assert do not exist, to bring an attempted wrongful eviction 

action against [the lessors], their agents, employees and attorneys or any action in any 

way arising out of or concerning his [Greenwich apartment] tenancy . . . .”

Civil Code section 1942.1 contains two paragraphs. The first paragraph provides 

that: “Any agreement by a lessee of a dwelling waiving or modifying his rights under 

Section 1941 or 1942 shall be void as contrary to public policy with respect to any 

condition which renders the premises untenantable, except that the lessor and the lessee 

may agree that the lessee shall undertake to improve, repair or maintain all or stipulated 

portions of the dwelling as part of the consideration for rental.” The second paragraph 

expressly authorizes arbitration of tenantability (i.e., warranty of habitability) disputes: 

“The lessor and lessee may, if an agreement is in writing, set forth the provisions of 
18

Sections 1941 to 1942.1, inclusive, and provide that any controversy relating to a

condition of the premises claimed to make them untenantable may by application of 

either party be submitted to arbitration . . . .” (Civ. Code, § 1942.1.) 

Code of Civil Procedure section 1942.1 voids any lease provision waiving a 

tenant’s rights under Civil Code section 1941 and 1942. (See Green v. Superior Court 

(1974) 10 Cal.3d 616, 625, fn. 9 [“public policy requires that landlords generally not be 

permitted to use their superior bargaining power to negate the warranty of habitability 

rule” by any provision in the lease or rental agreement].) This statute applies to lease and 

rental agreements; it does not void the waiving of a legal claim that the property owner 

violated the warranty of habitability as one of the terms of a settlement agreement in an 

unlawful detainer action. 

V. Issues Raised for the First Time in Needelman’s Reply Brief

In his reply brief, Needelman contends that the waivers in paragraphs Nos. 9 

and/or 10 of the settlement agreement7 are void as against public policy under Civil Code 

sections 1598, 1599, 1668, 1953, and 3513,8 and the Ordinance, San Francisco 

 

7 Paragraph No. 10 reads: “The parties agree that each party has been fully 

advised of the contents of California Civil Code [s]ection 1980, et seq., dealing with the 

disposition of personal property on the premises at the termination of a tenancy, and said 

sections and their benefits are expressly waived. Specifically, [Needelman] agrees that 

any of his personal property remaining in the unit after he vacates or is evicted therefrom 

shall be considered abandoned property, and [the lessors] shall be entitled to dispose of it 

without any notice to [Needelman] or his attorney.” 

8 These statutes read: “Where a contract has but a single object, and such object 

is unlawful, whether in whole or in part, or wholly impossible of performance, or so 

vaguely expressed as to be wholly unascertainable, the entire contract is void.” (Civ. 

Code, § 1598.) “Where a contract has several distinct objects, of which one at least is 

lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter 

and valid as to the rest.” (Id., § 1599.) “All contracts which have for their object, 

directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful 

injury to the person or property of another, or violation of law, whether willful or 

negligent, are against the policy of the law.” (Id., § 1668.) “(a) Any provision of a lease 

or rental agreement of a dwelling by which the lessee agrees to modify or waive any of 

the following rights shall be void as contrary to public policy: [¶] (1) His rights or 

remedies under Section 1950.5 or 1954. [¶] (2) His right to assert a cause of action 
19

Administrative Code section 37.9, subdivision (e). He also asserts that the waiver 

provision in paragraph No. 9 lacked consideration.

Other than the Ordinance, none of the above statutes was mentioned in 

Needelman’s opening brief on appeal. In his opening brief, he asserts that the lessors 

violated the Ordinance but does not make the argument that the settlement agreement is 

void under the Ordinance. Furthermore, with the exception of Civil Code section 1668, 

Needelman did not cite any of the above Civil Code sections in his opposition to the 

demurrer in the trial court. He did argue that paragraph No. 9 was void under Civil Code 

section 1668 in the trial court, but did not raise this argument in his opening brief in this

 

against the lessor which may arise in the future. [¶] (3) His right to a notice or hearing 

required by law. [¶] (4) His procedural rights in litigation in any action involving his 

rights and obligations as a tenant. [¶] (5) His right to have the landlord exercise a duty 

of care to prevent personal injury or personal property damage where that duty is 

imposed by law. [¶] (b) Any provision of a lease or rental agreement of a dwelling by 

which the lessee agrees to modify or waive a statutory right, where the modification or 

waiver is not void under subdivision (a) or under Section 1942.1, 1942.5, or 1954, shall 

be void as contrary to public policy unless the lease or rental agreement is presented to 

the lessee before he takes actual possession of the premises. This subdivision does not 

apply to any provisions modifying or waiving a statutory right in agreements renewing 

leases or rental agreements where the same provision was also contained in the lease or 

rental agreement which is being renewed.” (Id., § 1953, subds. (a) & (b).) “Any one 

may waive the advantage of a law intended solely for his benefit. But a law established 

for a public reason cannot be contravened by a private agreement.” (Id., § 3513.) 

Ordinance, San Francisco Administrative Code section 37.9, subdivision (e)

provides: “It shall be unlawful for a landlord or any other person who willfully assists 

the landlord to endeavor to recover possession or to evict a tenant except as provided in 

Section 37.9(a) and (b). Any person endeavoring to recover possession of a rental unit 

from a tenant or evicting a tenant in a manner not provided for in Section 37.9(a) or (b) 

without having a substantial basis in fact for the eviction as provided for in Section 

37.9(a) shall be guilty of a misdemeanor and shall be subject, upon conviction, to the 

fines and penalties set forth in Section 37.10A. Any waiver by a tenant of rights under 

this Chapter [except as provided in Section 37.10A(g),] shall be void as contrary to public 

policy.”
20

court. He did not argue in the trial court or in his opening brief that the waiver provision 

in paragraph No. 9 lacked consideration.9

It is well settled that arguments raised for the first time in an appellant’s reply 

brief are forfeited unless good reason has been shown for failure to raise them. (Garcia 

v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10.) Such arguments deprive the 

respondent of an opportunity to counter the argument. (American Drug Stores, Inc. v. 

Stroh (1992) 10 Cal.App.4th 1446, 1453.) Needelman does not explain the reasons he 

raised arguments for the first time in his reply brief and we decline to consider these 

untimely arguments. 

VI. The Trial Court Properly Sustained the Demurrer 

Without Leave to Amend as to Ona’s Claims

In the first amended complaint, the Needelmans claim that Ona, Needelman’s 

daughter, left personal property at his Greenwich apartment while she lived overseas and 

this property was missing or damaged after Needelman vacated the premises. There is no 

allegation that she was a third party beneficiary under the rental agreement or that she 

had any other contractual relationship with the lessors.

The pleading set forth the following five causes of action on behalf of Ona: 

conversion (fourth cause of action); unfair competition based on the unlawful detainer 

action, violating the Ordinance, violating Code of Civil Procedure sections 715.030 and 

1174, subdivisions (e) through (m), and Civil Code section 1983 through 1988 (fifth 

cause of action); intentional and negligent infliction of emotional distress (sixth and 

seventh causes of action, respectively); and violating civil forfeiture laws (ninth cause of 

action) under the same Code of Civil Procedure and Civil Code statutes set forth in the 

unfair competition cause of action. 

 

9 This argument is particularly frivolous as Needelman benefitted from the 

stipulation: the lessors did not go forward with their unlawful detainer action and 

permitted him to remain in his residence until September 30, 2012, as long as he 

complied with paragraph No. 9 and the other terms of the agreement. Forbearing suit or 

extending time for performance, which suspends a legal right, constitutes a sufficient 

consideration. (See Civ. Code, § 1605; Levine v. Tobin (1962) 210 Cal.App.2d 67, 70.)
21

“ ‘Conversion is the wrongful exercise of dominion over the property of another. 

The elements of a conversion are the plaintiff’s ownership or right to possession of the 

property at the time of the conversion; the defendant’s conversion by a wrongful act or 

disposition of property rights; and damages.’ ” (Farmers Ins. Exchange v. Zerin (1997) 

53 Cal.App.4th 445, 451-452.) Ona’s claim, as alleged in the first amended complaint, is 

based on the repossession of Needelman’s apartment. The repossession occurred after 

Needelman had violated the stipulation. Needelman was provided notice to vacate on 

May 23, 2012, and the sheriff executed the writ of possession seven days later, on May 

30, 2012. Needelman waited until May 29, 2012, to remove the property and then 

claimed he was unable to remove all of it. The lessors did not prevent him from 

removing all of the personal property. The writ of possession was done pursuant to the 

ex parte application for entry of judgment and was lawful, and therefore Ona cannot 

allege the essential element that the defendant’s conversion was wrongful. 

The unfair business (fifth cause of action) and violating the civil forfeiture laws 

(ninth cause of action) claims were based on allegations that the lessors failed to comply 

with the Ordinance, that they engaged in misconduct related to the unlawful detainer 

action, and that they violated other statutes governing how a landlord may remove and 

dispose of property left behind by vacating tenants. Specifically, in the fifth cause of 

action, the allegations were that the lessors violated the statutes “so as to consider 

personal property left by tenants on formerly rented property after unlawful detainer 

proceedings abandoned; to force former tenants to sign waivers of liability before 

returning their personal property; and to charge unconscionably high storage, packing, 

and transportation fees to former tenants before returning their personal property; and that 

such conduct amounts to unlawful or unfair business practices . . . .” Ona was not a 

tenant; the lessors did not owe her any legal duty. All of these allegations are based on a 

tenant/landlord relationship, and thus the trial court properly sustained the demurrer 

against her fifth and ninth causes of action. 

Intentional infliction of emotional distress exists when there is “ ‘ “ ‘(1) extreme 

and outrageous conduct by the defendant with the intention of causing, or reckless 
22

disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering 

severe or extreme emotional distress; and (3) actual and proximate causation of the 

emotional distress by the defendant’s outrageous conduct.’ ” ’ ” (Potter v. Firestone Tire 

& Rubber Co. (1993) 6 Cal.4th 965, 1001; see Christensen v. Superior Court (1991) 54

Cal.3d 868, 903.) The defendant’s conduct must be “ ‘ “intended to inflict injury or 

engaged in with the realization that injury will result.” ’ ” (Potter, at p. 1001.) The 

egregious conduct must be directed at the plaintiff or, if in reckless disregard, the conduct 

must occur “ ‘in the presence of a plaintiff of whom the defendant is aware.’ ” (Id. at 

p. 1002.) 

The first amended complaint stated that Ona lived overseas; thus she was not 

present for any of the events alleged in the pleading. There is no allegation that she had 

any contractual or other legal relationship with the lessors. There is no allegation that the 

lessors knew about Ona or directed any of their conduct towards her. Accordingly, Ona’s 

fifth cause of action for intentional infliction of emotional distress fails.

Similarly, Ona does not have any claim for negligent infliction of emotional 

distress, the sixth cause of action. Negligent infliction of emotional distress is a form of 

the tort of negligence, to which the elements of duty, breach of duty, causation and 

damages apply. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 

Cal.3d 583, 588.) Courts distinguish between bystander and direct victim cases. (See, 

e.g., Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) The right to recover for 

emotional distress as a “direct victim” arises from the breach of a duty that is assumed by 

the defendant or imposed on the defendant as a matter of law, or that arises out of the 

defendant’s preexisting relationship with the plaintiff. (Id. at pp. 1073-1074.) Here, Ona 

was not a direct victim; the pleading includes no allegation that the lessors had a 

preexisting relationship with her. A claim based on being a bystander plaintiff requires, 

among other elements, that the plaintiff “is present at the scene of the injury-producing 

event at the time it occurs and is then aware that it is causing injury to the victim . . . .” 

(Thing v. La Chusa (1989) 48 Cal.3d 644, 647.) As noted, Ona was not present at the 

scene as she was overseas. 
23

The Needelmans’ appellate briefs barely address Ona’s claims. In their reply brief, 

they maintain that the first amended complaint shows that Ona was a member of 

Needelman’s household at the time of the eviction. The Needelmans do not provide the 

exact allegations that support this claim but, in any event, such allegations are immaterial. 

Ona was not on the lease and the lessors did not owe her any legal duty; Ona was not 

present when any of the alleged misconduct occurred. The Needelmans’ other arguments 

that Ona has standing because her personal property was damaged or missing and that she 

suffered emotional distress and economic damage when she was notified that her property 

had been taken do not—for the reasons already noted—satisfy the elements necessary to 

state a cause of action against the lessors. 

Ona has not shown that she can amend the first amended complaint to state a cause 

of action and the trial court did not abuse its discretion in denying her a second opportunity 

to amend the pleading. 

DISPOSITION

The judgment is affirmed. The Needelmans are to pay the costs of appeal. 

_________________________

Kline, P.J.

We concur:

_________________________

Richman, J.

_________________________

Stewart, J.