GORDON GITLEN’S FINAL VICTORY

As everyone who reads this magazine on a regular basis knows, ACTION president and attorney, Gordon Gitlen passed away on May 3, 2005. However, on October 13, 2005, the Court of Appeal issued a decision in Bohbot v. Santa Monica Rent Control Board, which states his name as the lead attorney in that case.

That decision does two things that are related to the rights of property owners to occupy their property as a residence; (1) It permits owners of condominiums converted under the TORCA condominium law to evict tenants for owner occupancy IF the tenants living in the unit were not tenants on the date the unit was approved for conversion under the TORCA Law, and (2) it knocked out a Rent Board Regulation that prevented owners from filing owner-occupancy evictions FOR 4 YEARS if they filed an eviction case that was dismissed for any reason.

You may ask, who or what is a Bohbot? But that issue is not important. The important issue is what Bohbot was NOT. Bohbot was NOT a landlord and he never wanted anything to do with being a landlord. He simply became the owner of a condominium that was converted under the TORCA conversion law who wanted to in the unit he owned. Therefore, he left the landlord duties to the management company that was already managing the unit and the eviction to the Law Office of Gordon P. Gitlen.

If you wonder what a TORCA is, it stands for Tenant Ownership Rights Charter Amendment, which was an amendment to the City Charter that permitted landlords and tenants to convert apartment buildings into condominiums. Tenants who were present on the date the TORCA application was approved were known as “Participating Tenants” and they were given rights and protections in addition to those provided by the Rent Control Law.

Bohbot should have had no problem occupying his unit because the TORCA Law said that owners could evict for owner occupancy IF the tenant(s) living in the unit was NOT living in the unit on the date that the conversion was approved. Unfortunately, the Rent Control Board and most tenant attorneys took the position that ALL tenants living in TORCA unit condos were protected from owner-occupancy evictions no matter when they became tenants. Therefore, whenever an owner of a TORCA condo tried to evict for owner-occupancy, the tenant attorney would argue that this was illegal and the Rent Board would often get involved on their side.

Unfortunately for Bohbot, while his attorney was attempting to terminate the tenancy, his management company was still accepting rent from the tenant, so the eviction case had to be dismissed without prejudice because you cannot go to court arguing that a tenancy has been terminated if you have accepted rent after the termination notice has been served. More unfortunately, when a new notice to terminate tenancy was served, the tenant’s attorney raised the issue of Rent Control Regulation 9002 (b)(3), which states in pertinent part:

“Any owner who files suit against a tenant for owner or relative occupancy and who subsequently dismissed, either voluntarily or involuntarily, is precluded from terminating that tenant’s tenancy for owner or relative occupancy for four years from the date of dismissal, unless such dismissal is pursuant to a written settlement agreement between the owner and tenant negotiated at arms length and signed by both parties.” [emphasis added]

Since the tenant’s attorney was threatening to file a tenant harassment lawsuit for violating the Rent Board’s Regulation, Gordon and I wrote and filed a Declaratory Relief action challenging that Regulation. The Rent Board then did us a favor by arguing that the four-year restriction did not matter because no tenants who lived in TORCA units could be evicted for owner-occupancy without a Rent Board removal permit. After the Board made that argument, we amended the complaint to include both issues.

The matter came before Judge Joseph R. Kalin, who decided to believe what the Rent Board said about the TORCA Law rather than what the Law itself said about that subject, so he ruled in favor of the Rent Board and the tenant. So we appealed to the Court of Appeal. We filed the Opening Brief and the Rent Board filed a Respondent’s Brief, but Gordon Gitlen passed away before our Reply Brief was filed and the case was transferred to the Law Office of Rosario Perry.

Rosario Perry was very familiar with the TORCA issue because he had argued it himself in other cases that had not been not appealed. Rosario and I had actually prepared for a challenge to the Board’s interpretation of that Law long before Gordon challenged it, but Rosario’s clients “wimped out” and decided to pay their tenants to vacate the unit rather than to fight the Rent Board. Therefore, that issue was coming back to its point of origin

Many attorneys would have seen this case as an opportunity to claim all the credit and glory for themselves, but not Rosario. He actually asked that the Court of Appeal leave Gordon Gitlen’s name as the lead attorney in the case, although Rosario’s office filed the final brief and Rosario made the winning arguments at the Court of Appeal. That is typical of Rosario. Although he has appeared on the cover of this Magazine several times, he is always seen sharing the credit with others and he is very generous in his support of ACTION as well.

Therefore, the title of this Rent Board Story is slightly misleading because Gordon Gitlen’s final victory was made possible because Rosario Perry shared the credit with others, which is a regular practice of his.

And if you don’t believe it, go to any California law library and find the Rent Board Story of Bohbot v. Santa Monica Rent Control Board. Or you could go to the Rent Board and ask them whatever happened to Rent Board Regulation 9002 (b)(3).