Filed 6/19/20 Rumbo v. 3044 Leeward Avenue CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MARTHA RUMBO et al.,

Plaintiffs and Respondents,

v.

3044 LEEWARD AVENUE LLC, et al.,

Defendants and Appellants. B299649

(Los Angeles County

Super. Ct. No. BC702472)

APPEAL from an order of the Superior Court of Los Angeles County. Robert B. Broadbelt, Judge. Affirmed.

The Cameron Law Firm, Parry G. Cameron and James K. Autrey for Defendants and Appellants.

The Brinton Firm, Matthew L. Brinton for Plaintiffs and Respondents.

_____________________________________

Appellants 3044 Leeward Avenue LLC and J.K. Residential Services, Inc. appeal from the denial of their motion to compel arbitration in a landlord-tenant dispute. We find Civil Code section 1953, subdivision (a)(4) (hereinafter, section 1953(a)(4)), precludes arbitration of the claims asserted and therefore affirm.

FACTS

Respondents Martha Rumbo, Maria Garcia, and Roberto Garcia lived in the Twin Palms Apartments, which is owned by 3044 Leeward Avenue LLC and managed by J.K. Residential Services, Inc. On April 19, 2018, respondents filed a complaint against appellants for negligence, nuisance, and breach of the implied warranty of habitability. They alleged their apartment was infested with vermin and faulted appellants for failing to timely repair the building’s elevator. Martha Rumbo, who has cerebral palsy and uses a walker, was forced to use the stairs due to the faulty elevator. Because the stairs themselves were in disrepair, she tripped on loose carpeting and suffered extensive injuries.

Appellants moved to compel arbitration based on section XVIII of the lease agreement. Section XVIII has the heading, “Indemnification and Liability,” but includes the following arbitration clause:

“Should any dispute arise between LANDLORD and TENANT relating to any matter (excluding an Unlawful Detainer case or other case, filed by LANDLORD, for possession, arrearages under this LEASE, as such may constitute past due

rent/fees/costs and associated damages), such dispute shall be submitted to Arbitration instead of litigation in Court. The specific terms of Arbitration are stated in Addendum ‘B’, receipt of which is hereby acknowledged by TENANT.”

Respondents’ initials appear directly below the arbitration clause.

Addendum B, titled “Arbitration Agreement,” sets forth the notice, procedures, and binding nature of arbitration between the parties. It states arbitration is required for claims which “include, but are not limited to, compensation due to personal injury; claims for breach of any contract or covenant (other than an eviction proceeding); tort claims; claims for discrimination and harassment (including, but not limited to, race, sex, religion, national origin, age, marital status, or medical condition, disability, sexual orientation, or any other characteristic protected by federal, state, or local law); and claims for violation of any public policy, federal, state, or other governmental law, statute, regulation, or ordinance[,]” but specifically excluded “eviction proceedings and/or collection of rents.”

Addendum B further discloses discovery is limited in accordance with the rules enacted by the pre-selected arbitration provider. Addendum B also specifies a “Waiver of Jury/Exclusive Remedy” that states, “Tenant and Landlord knowingly and voluntarily waive any constitutional right to have any dispute between them decided by a court of law and/or by a jury in court.” (All capitalization omitted.) Although Addendum B provides a space for the landlord’s and tenant’s initials on each page and their signatures on the last page, the copy submitted to the trial court is unsigned and no party has placed his or her initials on any page of Addendum B.

The trial court heard and denied the motion to compel arbitration on July 3, 2019. Appellants timely filed their notice of appeal on July 30, 2019.

DISCUSSION

Appellants assert the trial court erred when it denied their motion to compel arbitration, citing to California’s strong public policy favoring arbitration of controversies. We review de novo an order denying a motion to compel arbitration. (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 684.) We conclude the trial court correctly applied section 1953(a)(4) to deny the motion.

Section 1953(a)(4) declares as void against public policy the modification or waiver of a lessee’s “procedural rights in litigation in any action involving his rights and obligations as a tenant.” Section 1953(a)(4) thus “establishes the general rule that a tenant of residential premises cannot validly agree, in a residential lease agreement, to binding arbitration to resolve disputes regarding his or her rights and obligations as a tenant,” including the right to discovery and a jury trial. (Jaramillo v. JH Real Estate Partners, Inc. (2003) 111 Cal.App.4th 394, 403–404 (Jaramillo).) By contrast, Civil Code section 1942.1 provides that residential landlords and tenants may, by written agreement setting forth the provisions of sections 1941 to 1942.1 (concerning the tenant’s right to a habitable dwelling), inclusive, provide that disputes involving the warranty of habitability be resolved by binding arbitration. Thus, section 1942.1 allows the waiver of the right to a jury trial in disputes relating to habitability issues if certain conditions are met. (Civ. Code, § 1942.1.)

In Jaramillo, the plaintiffs asserted negligence and habitability claims against their landlord for mold in their apartment and a dangerous condition in the common area. Specifically, one of the plaintiffs suffered injuries resulting from a fall on a concrete ramp that the landlords failed to repair or maintain. (Jaramillo, supra, 111 Cal.App.4th at p. 397.) The arbitration provision in Jaramillo required binding arbitration for personal injury claims but exempted unlawful detainer actions. (Id. at p. 398.)

The Jaramillo court held section 1953(a)(4) applied to preclude arbitration in that case. The court found the plaintiffs’ claims involved a dispute regarding their rights and obligations as tenants. Moreover, the plaintiffs’ procedural rights were affected because a waiver of the right to a jury trial is inherent in an arbitration agreement. (Jaramillo, supra, 111 Cal.App.4th at p. 404.) The Jaramillo court observed, however, that nothing in section 1953(a)(4) precludes a residential tenant from entering into a separate agreement, entirely independent of the rental agreement, to waive or modify their procedural rights. It noted that such stand-alone waivers or modifications should be enforceable unless barred by another statute or law, such as the doctrine of unconscionability. (Jaramillo, supra, 111 Cal.App.4th at p. 404.)

Apart from the application of section 1953(a)(4), Jaramillo also found the arbitration clause lacked sufficient “bilaterality” because, among other things, “personal injury claims arising from the condition of the leased premises are largely, if not exclusively, tenant claims.” Thus, the court found this rendered the arbitration provision unconscionable. (Jaramillo, supra, at p. 406.)

We are persuaded by Jaramillo to conclude section 1953(a)(4) prohibits binding arbitration under the circumstances presented in this case. As in Jaramillo, respondents here sued appellants for dangerous conditions inside their apartments and in the common areas, which resulted in injuries to them. Addendum B limits discovery and obviates the right to a jury trial since the dispute is to be resolved by arbitration. Jaramillo specifically identified the right to conduct discovery and to have a jury trial as procedural rights that may not be waived or modified pursuant to section 1953(a)(4). (Jaramillo, supra, 111 Cal.App.4th at p. 404.)

Moreover, the arbitration provisions in section XVIII and Addendum B lack “bilaterality” and are unconscionable. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 119 [a contract is unconscionable when it “requir[es] arbitration only for the claims of the weaker party but a choice of forums for the claims of the stronger party”]; Jaramillo, supra, 111 Cal.App.4th at p. 405.) We agree with Jaramillo’s observation that personal injury claims arising from the condition of the apartment and common areas are largely, if not exclusively, asserted by tenants, rather than landlords. On the other hand, unlawful detainer actions, which are exempt from arbitration, are exclusively filed by landlords. As a result, tenants’ claims usually will be subject to arbitration while the landlords’ claims usually will not. This renders the arbitration provisions at issue unconscionable.

We are not convinced by appellants’ reliance on Civil Code section 1942.1 to carve out an exception for controversies relating to “tenantability” issues. Section 1942.1 allows arbitration of controversies relating to the condition of the premises if an agreement is in writing and “set[s] forth the provisions of Sections 1941 to 1942.1, inclusive.” Neither the arbitration clause in section XVIII nor Addendum B set forth the provisions of sections 1941 to 1942.1. Accordingly, section 1942.1 does not apply in this instance.

We also reject appellants’ absurd contention, made for the first time in their reply brief, that Addendum B is a separate stand-alone agreement such that it is not subject to section 1953(a)(4). Even if we accept appellants’ assertion, Addendum B suffers from the same lack of mutuality described above. Standing alone, Addendum B is unconscionable and unenforceable.

DISPOSITION

The order denying appellants’ motion to compel arbitration is affirmed. Respondents to recover their costs on appeal.

BIGELOW, P. J.

WE CONCUR:

GRIMES, J.

STRATTON, J.