RENT STABILIZATION BOARD CITY OF EAST PALO ALTO

Transcription

1 RENT STABILIZATION BOARD CITY OF EAST PALO ALTO MARIA HURTADO, Petitioner, vs. YUSUF IBRAHIM, Respondent. Case No.: 00 DECISION AFTER HEARING 0 1 I. HEARING Petitioner MARIA HURTADO (hereinafter, "Petitioner") filed this petition with the Rent Stabilization Program (hereinafter "the RSP") against Respondent YUSUF IBRAHIM (hereinafter "Respondent") on August, 01. Petitioner is a former tenant at 1 Addison Avenue, Unit A, 0. Respondent is the landlord of the aforementioned property. A hearing on this petition was scheduled and held on October, 01 at 1:00 PM. Present at the hearing was Petitioner MARIA HURTADO, who was represented by counsel from Community Legal Services in East Palo Alto (hereinafter "CLS"), Ms. Margaret McBride, Esq and Ms. Tiffany Zendejas. Respondent YUSUF IBRAHIM was present at the hearing and represented himself. Also present at the hearing were Ms. Maria Garcia and Mr. Kavin Hurtado v. Ibrahim. Case #00 Decision. - Page 1

2 Vossekuil, who were present to give testimony on behalf of Respondent. Ms. Iliana Garcia, a Spanish language translator was present to assist Ms. Hurtado II. ISSUES PRESENTED Petitioner sought a rent rebate based on the Rent Stabilization and Just Cause for Eviction Ordinance of the City of East Palo Alto (0) (hereinafter "RSO") and the Rules and Regulations (hereinafter "the Regulations") adopted by the City of East Palo Alto (hereinafter "the City") pursuant to the RSO. Petitioner alleged that she was entitled to a rent rebate based on a violation of the warranty of habitability. Specifically Petitioner alleged the following violations of the warranty of habitability: 1) Inadequate weather protection, including broken windows, the intrusion of dust, debris and chemical fumes from the laundromat located below the apartment; ) Defective and leaking plumbing; ) An infestation of cockroaches; and ) An infestation of bedbugs. 0 Respondent filed a response to the petition on September 1, 01. Respondent opposed the requested rent rebate based on arguments and evidence contained in Respondent's written statement of opposition and other evidence presented at or before the hearing. 1 III. RELIEF REQUESTED In the petition, Petitioner requested; 1. A rent rebate of seventy percent (0%) for thirty months due to the alleged bedbug infestation;. A rent rebate of seventy percent (0%) for thirty months for the alleged cockroach infestation;. A rebate of ten percent (%) for forty two months for alleged inoperative plumbing; Hurtado v. Ibrahim. Case #00 Decision. - Page

3 . A rebate of seventy percent (0%) for thirty months for the intrusion of exhaust fumes from the downstairs Laundromat; and. A rebate of thirty percent (0%) for forty five months for the broken windows IV. EVIDENCE A. Petitioner's evidence. Petitioner submitted the following exhibits in support of her rent rebate request: 1. Exhibit : Photograph of bedbugs on a couch.. Exhibit : Photograph of leaking pipes under kitchen sink.. Exhibit : Photograph of leaking plumbing in bathroom. Exhibit : Photograph of bathroom sink.. Exhibit : Photograph of "exposed pipes" on apartment ceiling.. Exhibit : Photograph of broken kitchen window.. Exhibit : Photograph of broken bedroom window.. Exhibit 1: Letter from Petitioner to Respondent dated May, 01.. Exhibit 1: Notice of violation issued to Respondent by City of East Palo Alto Code Enforcement dated June, In addition to providing the exhibits listed above, Petitioner Hurtado also gave testimony regarding the incidents and circumstances leading up to this petition. Petitioner testified that there were problems with the apartment right from the beginning of her tenancy. Petitioner testified that the broken kitchen window was the first defect in the property that she noticed and that it was broken when she moved in. According to Petitioner she informed Ms. Garcia in the Metro PCS store that the window was broken the same day that she moved in. Petitioner stated that the usual and customary practice between the parties when there was an issue with the apartment was to communicate through Respondent's employees in the Metro PCS store, as the employees are fluent in Spanish and Respondent is not. The kitchen window remained broken until approximately May 0, 01. Petitioner Hurtado testified that the broken kitchen window Hurtado v. Ibrahim. Case #00 Decision. - Page

4 caused dust and dirt to enter the apartment and caused the entire apartment to be extremely cold in the winter. Petitioner Hurtado also testified about other maintenance issues with the property. There was a second window that was broken and caused issues with the weatherproofing of the apartment. The bedroom window was broken when she returned home from work one day in February or March of 01. Petitioner testified that she immediately went downstairs to the Metro PCS store and informed Ms. Garcia about the broken window. Petitioner testified that this broken window was repaired on the same day that the other window was repaired, on or about May 0, 01. Petitioner testified as to the presence of both bedbugs and cockroaches in the apartment. Petitioner testified that she first noticed the bedbugs in the apartment approximately two years ago (sometime in 01) and first reported it to Respondent's employees during 01. According to Petitioner the bedbugs were located in furniture in the apartment and in the carpet and all rooms of the apartment. Petitioner was forced to discard furniture to remove the bedbug infestation, including beds and couches. Petitioner testified that she informed Respondent through the Metro PCS employees. Petitioner testified that the cockroaches were present when she moved into the apartment and that she informed Respondent's employees in the Metro PCS store when she moved in. Petitioner also testified as to issues with the plumbing in the apartment. According to Petitioner the kitchen sink repeatedly became clogged and unserviceable and would overflow onto the floor. Petitioner testified that she reported it to Respondent and that some repairs were made quickly by Respondent, but that the pipes continued to leak and continued to become clogged and back up periodically. Petitioner called in her own plumber to repair the problem with this sink. Petitioner did not recall when she called in her plumber, nor when she first reported these plumbing issues to Respondent. Petitioner testified as to issues with the plumbing in the bathroom of the apartment. When Petitioner moved into the apartment there was a small leak around the base of the toilet in the bathroom, which became progressively worse until the toilet was no longer usable, in Hurtado v. Ibrahim. Case #00 Decision. - Page

5 February or March of 01. Petitioner was unsure when she first reported this issue to Respondent. Petitioner also testified as to repeated clogs in the bathroom sink which Petitioner repaired herself with liquid cleaner. Petitioner did not recall when she cleared the clogged bathroom sink herself. Petitioner gave evidence regarding exposed pipes in the apartment. Petitioner testified that the pipes are part of a sprinkler system that was installed when the Laundromat downstairs was opened. Petitioner testified that the pipes travelled through the apartment walls and that there were gaps around the pipes which allowed dust and dirt to enter the apartment. Petitioner testified that, in addition to informing Respondent's employees in the Metro PCS store, Petitioner wrote a letter to Respondent informing him of the issues with the apartment in May 01. Petitioner testified that she wrote this letter because Respondent was not making repairs in a timely manner after she requested repairs through the Metro PCS employees. Petitioner testified that she delivered this letter to one of the employees in the Metro PCS store to give to Respondent. Respondent Ibrahim was offered the opportunity to cross examine Petitioner Hurtado as to her evidence and testimony, but declined to ask Petitioner any questions. 0 1 B. Respondent's evidence. Respondent submitted the following exhibits in opposition to Petitioners' rent rebate request: 1. Exhibit A: Report from Clark Pest Control with inspection date of April 1, 01. Respondent testified that he did not keep a detailed repair log in writing as he had a relationship built on trust with Petitioner. Respondent gave testimony that the bedbugs were not reported to him until around February 01. Respondent testified that he acted diligently upon being informed of the bedbug problem and immediately asked Ms. Garcia to arrange a pest control company to inspect and/or treat the infestation. Respondent testified that when the pest Hurtado v. Ibrahim. Case #00 Decision. - Page

6 control inspector examined the property, the pest control inspector recommended chemical treatment of the building and not heat treatment, due to the possibility of the heat treatment damaging the sprinkler system in the property. Respondent testified that he paid for the cost of the treatment and inspection. Respondent testified that whenever there was an issue with the property he would send his repair/construction contractor, Mr. Vossekuil, to inspect and make any repairs that were appropriate. Respondent testified that he was informed about the broken windows in March 01. Respondent testified that the sprinkler system was installed in the building when the laundromat was expanded in late 01. Respondent testified that the sprinkler system was installed by a professional company and was subsequently inspected and approved by the City. Respondent testified that as soon as he was aware of the window damage he acted diligently to make the repairs to the windows. Respondent alleged that Petitioner and/or Petitioner's guests or subtenants, threw trash from the apartment on the roof of the attached Laundromat and Metro PCS store and left it there. Counsel for Petitioner cross examined Respondent as to Respondent's practice of communicating with his tenants through his Spanish speaking Metro PCS employees. Respondent testified that the first time that he was informed of the bed bug issue in the apartment was at the beginning of 01. Respondent testified that he was not informed by Petitioner of the bed bug issue, but that he was first informed by the City. Respondent testified on cross examination that he did not inspect the apartment between 0 and early 01 because he was unaware of any issues requiring his attention. Respondent testified that he inspected the exterior of the apartment in December 01 but that he did not enter the apartment at that time and did not notice any broken windows during his inspection. Respondent further testified that he received a letter from the City during February 01 informing him of the bed bug issue. Respondent testified that he instructed his Metro PCS employees to contact Ms. Vossekuil directly when there was an issue with the apartment that required repair. Mr. Kavin Vossekuil gave testimony as a witness regarding the conditions in the property. Mr. Vossekuil testified that he is a handyman/repairman and that he does most of the Hurtado v. Ibrahim. Case #00 Decision. - Page

7 repairs at the property. Mr. Vossekuil testified that he runs his own business and operates independently of Respondent. Mr. Vossekuil testified that he is a licensed plumber in the State of California. Mr. Vossekuil testified that at the time that he made repairs to the kitchen sink the kitchen window was not broken. Mr. Vossekuil stated that he was in a position where he would have noticed the broken window because it is close by the sink to which he was making repairs at that time. Mr. Vossekuil estimated that the repair to the kitchen sink was made some time during 01. Mr. Vossekuil testified that the sinks would get choked up by grease poured down the sinks by Petitioner and other residents of the apartment. Mr. Vossekuil testified that he installed a larger diameter sewer line to attempt to remedy the clogging issues but that was not completely effective. Mr. Vossekuil testified that the clogging problems were constant but that it was not an issue with the plumbing in the building but that it was due to the conduct of Petitioner and her family. Mr. Vossekuil testified as to the nature of the repairs he made to the toilet to stop the leaking in the bathroom. Mr. Vossekuil testified that he conducted the repairs the same day that he was informed of the issue with the leaking toilet and that the repairs were completed sufficient to comply with any applicable building codes. Mr. Vossekuil testified that the nature of the plumbing issues was consistent with over use and simple wear and tear. Mr. Vossekuil testified that there were approximately four occasions when he arrived at the apartment to make repairs and was denied access. Mr. Vossekuil testified that when he received a report of an issue that impacted health or safety of the residents he would usually respond to the call and make the repairs the same day. Mr. Vossekuil testified that he would receive calls to make repairs from both Respondent and Ms. Garcia and that usually he would get a call from both Respondent and Ms. Garcia when a repair needed to be made. Counsel for Petitioner cross examined Mr. Vossekuil about whether there were any occasions when he was contacted by Ms. Garcia and not by respondent. On Cross examination Mr. Vossekuil testified that there were a small number of occasions when Respondent was on vacation and he was contacted by Ms. Garcia alone. Mr. Vossekuil testified that he had conversations with Respondent regarding the plumbing issues in the apartment during 01. Hurtado v. Ibrahim. Case #00 Decision. - Page

8 Ms. Maria Garcia gave testimony regarding her role as an employee of Respondent at the Metro PCS store and regarding her role as intermediary and translator between the parties. Ms. Garcia testified that she has worked for Respondent since approximately October 0. Ms. Garcia stated that she is related to Petitioner. Ms. Garcia testified that she had been searching for contractors to inspect and treat the bed bug issues in the apartment since October 01. Ms. Garcia testified that she had contacted several other companies before getting into contact with Clark Pest Control and scheduling the inspection and treatment with them. Ms. Garcia testified that Clark Pest Control inspected and treated the property. Following the inspection and treatment by Clark Pest Control the City inspected the apartment and observed that there was still bed bug activity present. Ms. Garcia testified that, following on from the inspection by the City, she contacted Clark Pest Control who inspected the apartment again and found no evidence of bed bug activity. Ms. Garcia testified that there was a delay in getting Clark to re-inspect the apartment as there is only one inspector for San Mateo County and that he was unavailable. Ms. Garcia testified that efforts to inspect and ensure that no bed bugs remain in the apartment are current and ongoing. Ms. Garcia testified that dust and fumes intruding into the apartment was never reported to her as issues requiring repair. Ms. Garcia testified that she was never informed of any issue regarding cockroaches but that the apartment was bombed prior to Petitioner moving into the apartment. Ms. Garcia testified that the leaking toilet was reported to her in approximately October of 01, around the same time that the bed bug issue was first reported to her. Ms. Garcia testified that she was informed about the kitchen sink requiring repair sometime during 01. Ms. Garcia testified that her usual and customary action upon receiving a report of work being needed she would contact Respondent first. If it was an urgent matter that could pose a safety issue Ms. Garcia would contact Mr. Vossekuil immediately. If the matter was not urgent and did not create a potentially dangerous condition Ms. Garcia would not contact Mr. Vossekuil directly and would wait for Respondent to do so. Hurtado v. Ibrahim. Case #00 Decision. - Page

9 Counsel for Petitioner cross examined Ms. Garcia. On Cross examination Ms. Garcia testified that there were some reports of clogging issues with the plumbing since Petitioner moved in during 0. Ms. Garcia testified that she always informed Respondent of any issues with the apartment. Ms. Garcia testified that sometimes issues with the apartment were reported to her co-worker at the Metro PCS, Mr. Omar Garcia. Ms. Garcia testified that she was informed of the broken window in the kitchen in the Summer of 01 while Respondent was on vacation. Ms. Garcia testified that while Respondent was on vacation Respondent's brother stepped in to temporarily approve any repairs needed until Respondent's return from vacation. Ms. Garcia testified that Respondent's brother was informed about the broken kitchen window but that no repairs were carried out at that time V. DISCUSSION In California any apartment or other real property offered for rent must meet certain minimum standards and conditions in order to be fit for habitation. These minimum conditions are known as the warranty of habitability. See, eg Green v. Superior Court () Cal.d. Amongst other requirements any real property offered for rent in California must have "Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors 1 ", must have "Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained and in good working order " and must also be "free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin ". The RSO and the Regulations adopted by the City perform an important role by providing residents of the City a forum in which to resolve disputes arising from alleged violations of these minimum standards. A former tenant is permitted to file a petition for a rent rebate based violation of the warranty of habitability within six months of the termination of their tenancy. Regulations 0(A)(). In this case Ms. Hurtado filed this petition on August, 01. Petitioner alleges, 1 See Cal. Civil Code 1.1(a) See Cal. Civil Code 1.1(b) See Cal. Civil Code 1.1(f) Hurtado v. Ibrahim. Case #00 Decision. - Page

10 1 and Respondent did not dispute, that Petitioner and her family vacated the property on or about July 1, 01. Since it is clear that the petition was timely under Regulation 0(A)(), jurisdiction exists to hear this matter under the RSO and the Regulations. In any petition for a rental rebate based on a violation of the implied warranty of habitability based on the RSO and the Regulations, the burden of proof lies with the Petitioner to show, by the "preponderance of the evidence" that grounds exist for a reduction of rent. Regulations 0 (E)()(c). While no firm definition for this standard exists it is most often described as requiring that the party who carries the burden of proof, in this case the Petitioner, must show that something is more likely than not to be true. See California Civil Jury Instructions (CACI) # 00. In this case, therefore, Petitioner must show that it is more likely than not that Respondent has breached the warranty of habitability and that, as a result Petitioner is entitled to a rent reduction A. Bed Bugs and Cockroaches Neither party denies that there was an infestation of bedbugs within the apartment during Petitioner's tenancy. The dispute between the parties exists only about (1) when Respondent knew or should have known about the bedbug infestation and () whether Respondent acted diligently to resolve the issue. In her written petition Ms. Hurtado stated that she first noticed the bedbug infestation in the apartment in January 01 Ms. Hurtado's testimony at the hearing was consistent with her written petition and at the hearing Petitioner testified that she first reported her concerns about the bedbugs to Respondent during 01. Respondent, however, testified that he was first informed of the existence of the bedbugs by the City during February or March of 01 and that it was not until Petitioner's written letter dated May, 01 that Petitioner notified him of the issue. Notably, in Respondent's written response to the Petition, Respondent states that he was never notified by Petitioner of the existence of bedbugs, despite Respondent stating that he received the letter from Petitioner and informed Petitioner that "I would handle the issues". Respondent's testimony on this matter, therefore, is inconsistent and self contradictory. Hurtado v. Ibrahim. Case #00 Decision. - Page

11 Respondent's employee and agent, Ms. Garcia, testified that she had known of, and had informed Respondent of, the bedbug infestation since at least October 01. There is sufficient evidence in the record, therefore to support a finding that Respondent was aware of the bedbug infestation from October 01 through to the end of Petitioner's tenancy on or about July 1, 01. Once a landlord in California is informed of a defect or condition in the premises requiring repair that landlord must act within a "reasonable time" to remedy the deficiency in the property. Green v. Superior Court () Cal.d,. In this case the parties agree that the condition was not remedied prior to Petitioner Hurtado and her family vacating the property, a period of approximately nine months later. Respondent therefore did not remedy the defect within a reasonable time. Petitioner testified that she had also reported an infestation of cockroaches in the apartment for the entire duration of the tenancy. Notably, however, Exhibit 1 (the letter that Petitioner wrote to Respondent, dated May, 01) makes no mention of cockroaches at all. Both Respondent and Ms. Garcia testified that no issue relating to cockroaches was ever reported to them. Additionally the Notice of Violation issued by the City to Respondent on June, 01 does not state that the inspector confirmed the existence of cockroaches, but only that the "tenant reported presence of cockroaches" in the kitchen. Petitioner therefore has not met her burden of proof regarding the presence or absence of cockroaches in the apartment. 1 B. Broken Windows Similar to the bedbug infestation there is no dispute between the parties about the fact that the kitchen window was broken and that it was subsequently repaired on or about May 0, 01. The dispute between the parties arises regarding when, if at all, Respondent was informed about the broken window and whether Respondent acted in a reasonable time to effect repairs once Respondent was so informed. Hurtado v. Ibrahim. Case #00 Decision. - Page

12 Petitioner testified that Respondent had been informed multiple times over the course of her tenancy, beginning shortly after she took possession of the apartment. Respondent testified that he was never informed of the broken kitchen window. Ms. Garcia testified that the broken window was reported to her, as Respondent's agent, while Respondent was on vacation and that the repair was not completed at that time. Ms. Garcia testified that this occurred during Summer of 01. Summer in California approximately covers the months of June through September. Taken in the best light for Respondent therefore, Respondent (through his agent) knew or should have known of the broken window on or before the end of September 01. Petitioner testified that the bedroom window was broken during February, 01. Petitioner testified that she informed Respondent's agent of the broken bedroom window that same day. Neither Respondent nor any other witness disputed this testimony. Petitioner testified, and Respondent did not dispute, that both broken windows were repaired at the same time, on or about May 0, 01. There is sufficient evidence in the record, therefore, that the kitchen window remained broken for at least two years and seven months after Respondent (through Respondent's agent and employee) had notice of the defect. There is sufficient evidence in the record to support a finding that the bedroom window remained broken for a period of three months before it was repaired. In California the length of time that is considered to be a reasonable time varies depending on the type of repair required and the circumstances. However, California law creates a presumption that a tenant has waited a "reasonable time" before making repairs themselves if a tenant has waited thirty days from the date on which a landlord is informed of the need to make repairs to a defective condition. Cal. Civ. Code (b). By extension therefore, the maximum time that can equal a "reasonable time" to make needed repairs is thirty days. Therefore Respondent did not make the repairs to the kitchen window and the bedroom window within a "reasonable time" after being informed of the need to make repairs. // // // Hurtado v. Ibrahim. Case #00 Decision. - Page 1

13 C. Defective Plumbing Petitioner noted two separate issues with the plumbing in the apartment in her petition. First, Petitioner mentions that the plumbing pipes in the sinks leaked and that the sinks themselves became clogged frequently. The second plumbing related issue that Petitioner mentioned was the issue with the leaking water from the base of the toilet. Respondent and Mr. Vossekuil (a licensed plumber in the State of California) testified that repairs to the plumbing in the apartment were a frequent thing. Mr. Vossekuil testified that the blockages were caused by Petitioner and her family's practice of disposing of cooking oil down the sinks in the apartment. Regardless of the cause of the blockages the evidence in the record suggests that Respondent acted quickly and diligently to make repairs whenever a fault with the plumbing was reported to him (or to Ms. Garcia) and that the issues with the plumbing simply reoccurred after a short time. Mr. Vossekuil also testified as to the nature of the repairs that he carried out on the bathroom toilet. Mr. Vossekuil stated that he carried out far more extensive repairs to the toilet than Petitioner mentioned and that his repairs were up to his usual professional standard as a licensed plumber. Mr. Vossekuil testified that he made the repairs the same day that the issue with the leaking toilet was reported to him. The evidence in the record, therefore, suggests that Respondent made repairs within a reasonable time of being informed of both the plumbing issues in the apartment, and continued to make repairs of the same or a similar nature throughout the remainder of Petitioner's tenancy. Petitioner has therefore not met her burden of proof regarding this claim. D. Dust and Chemical Intrusion Respondent testified that dust and other debris would enter into the apartment via holes in the walls and ceiling that were made in order to allow a sprinkler system to be installed. Respondent and Mr. Vossekuil testified that the installation of the sprinkler system was carried out by a licensed specialist company and Respondent testified that no issue regarding dust, fumes or other particle intrusion was ever reported to him. Hurtado v. Ibrahim. Case #00 Decision. - Page 1

14 Petitioner has not met her burden of proof regarding this claim E. Conclusion Petitioner sought a rental rebate of seventy percent (0%) for the presence of the bedbugs in the apartment for a period of thirty (0) months. Based on this hearing, however, the evidence supports a finding that the condition did not last that long, but lasted from September 01 through to the date on which Petitioner and her family moved out(on or about July 1, 01), a period of nine () months. Based on the totality of the circumstances, Petitioner is therefore entitled to a rental rebate of thirty percent (0%) for seven months for the presence of the bedbugs. From October 1, 01 through January 1, 01 the rental amount was $1,.00 and from February 1, 01 through to June 0, 01 the rental amount was $1,.. The rebate due for the presence of bedbugs in the apartment is therefore the sum of (i) three hundred and ninety seven dollars and eighty cents ($.0) for the months of October, 01 through January, 01, inclusive (calculated as 0% of the MAR of 1,.00) PLUS (ii) four hundred and six dollars and ninety seven cents ($0.) for the months of February 01 through June, 01, inclusive. The total bedbug rebate due is therefore three thousand six hundred and twenty six dollars and five cents ($,.0). Petitioner sought a rental rebate of thirty percent (0%) for thirty months for the damaged windows in the apartment. However, based on the totality of the circumstances, Petitioner is entitled to a rebate of five percent(%) per month for the broken kitchen window. The broken kitchen window persisted from late September 01, at the latest, through to May 01, a period of thirty one (1) months. M. Petitioner is additionally entitled to a rental rebate of five percent See Decision in Petition Number 00 for calculation of Maximum Allowable Rent (hereinafter "MAR") between January 1, 01 and February 1, 01. See Decision in Petition Number 00 for calculation of MAR between February 1, 01 and the end of the tenancy on or about July 1, 01. Hurtado v. Ibrahim. Case #00 Decision. - Page 1

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