Erlach v. Sierra Asset Servicing, LLC, 226 Cal. App. 4th 1281 (2014)

1
       In support of appellant's position the Western Center on Law and Poverty has filed
an amicus curiae brief on behalf of the Homeowner Bill of Rights Collaborative.
2
       On demurrer, "we must accept as true all properly pleaded material facts and facts
that may be inferred from these allegations . . . . " (Acuna v. San Diego Gas & Electric
Co. (2013) 217 Cal.App.4th 1402, 1411; see Klein v. Chevron U.S.A., Inc. (2012) 202
Cal.App.4th 1342, 1374.)
        Starting in 2009, appellant was the tenant/lessee of one bedroom, one bathroom
and all the common areas of the residence at 7171 Oak Tree Place in Monterey. Mary
Schwann (Schwann) was the owner of the premises. On April 6, 2010, appellant and
Schwann entered into a written agreement whereby appellant paid $3,500 in advance to
rent the property for seven months ($500 a month) covering the period from April 1,
2010 to October 30, 2010. At some point, appellant had paid a $600 security deposit. On
October 9, 2010, appellant and Schwann entered into a modification of the agreement
whereby appellant paid an additional $500 to extend the agreement to November 30,
2010.
        Late in October 2010, Schwann had the gas and electricity services to the property
turned off; she said it was because other tenants had failed to pay rent. Appellant
demanded that Schwann restore the utilities, but Schwann refused and told appellant that
she was going to " 'freeze [him] out.' " Thereafter, Schwann turned off the water service
despite the fact that appellant's name was on the account. On November 8, 2010, a code
enforcement inspector for the county "red tagged" the property for " 'no electric, no heat,
no hot water.' " Appellant was precluded from occupying the property except to gather
his belongings.
        Four days later, on November 12, 2010, the property was sold in a foreclosure sale
to Sierra. After the foreclosure sale, appellant met with Sierra's representative and
explained that he had a lease with Schwann; the representative stated that appellant could
stay for the remainder of the lease, but work needed to be done on the property. Sierra
began work on the premises removing the carpets, flooring, and kitchen and bathroom
fixtures; appellant objected.
        On November 15, 2010, appellant spoke with Brian Grocott, Sierra's agent.
Grocott told appellant that he could stay in the property until the end of December using
appellant's $600 security deposit as rent for that month; Grocott said the property would
be repaired and restored promptly. From November 15 to December 3, 2010, repeatedly,