Filed 6/13/02; pub. order by Supreme Court 9/11/02
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
VEISNA KONG etc.,
B149322
Petitioner and Appellant,
(Super. Ct. No. BS065553)
v.
CITY OF HAWAIIAN GARDENS
REDEVELOPMENT AGENCY,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, Dzintra I.
Janavs, Judge. Reversed.
Anthony P. Parrille & Associates and Anthony P. Parrille for Petitioner and
Appellant.
Woodruff, Spradlin & Smart, M. Lois Bobak and Roberta A. Kraus for Defendant
and Respondent.
___________________
INTRODUCTION
Petitioner Veisna Kong, doing business as Bartha’s Donuts, appeals from the order
denying his petition for writ of mandate to compel the City of Hawaiian Gardens
Redevelopment Agency to pay him relocation benefits. We reverse.
STATEMENT OF FACTS
In February 1993, by way of assignment, petitioner became the sublessee of a
piece of commercial property commonly known as 11913½ Carson Street in the City of
Hawaiian Gardens (the premises). Frank and Dorothy Bartha (the Barthas) were the
master lessees. Petitioner owned and operated a donut shop on the premises.
The term of the sublease was five years, commencing on January 1, 1992 and
ending on December 31, 1996. The sublease contained a provision giving petitioner an
option to extend the lease for one two-year period until December 31, 1998. The lease
further provided that “[i]f the Tenant, with the Landlord’s consent, remains in possession
of the Premises after the expiration or termination of the term of this Lease, such
possession by Tenant shall be deemed to be a tenancy from month-to-month at a rental in
the amount of the last monthly rental plus all other charges payable hereunder, upon all
the provisions of this Lease applicable to month-to-month tenancy.”
On July 22, 1993, respondent City of Hawaiian Gardens Redevelopment Agency
(Agency) notified petitioner that he was eligible for relocation advisory assistance and
might be eligible for relocation benefits as well. The Agency further apprised petitioner
that he was a tenant in a redevelopment project area and it would be necessary for him to
move at a later date in order for the Agency to carry out its redevelopment plan.
Petitioner would not be required to move without 90 days advance written notice,
however.
2
In August 1993, Agency acquired the premises with public funds and for a public
purpose. In a letter dated August 31, 1993, the Agency apprised petitioner that effective
August 12, 1993, it had acquired the premises formerly owned by the Veady Family
Trust. The Agency also told petitioner that his lease had been transferred to the Agency
and that, until further notice, all provisions would remain the same. In addition, a new
lease would follow within 10 working days. All payments and maintenance requests
were to be sent to the Agency.
In a letter dated January 20, 1994 and addressed to petitioner, Attorney Graham A.
Ritchie stated: “I represent the . . . Agency which has acquired the property on which
Bartha’s Donuts is located. In order to make an appropriate offer to you with respect to
the relocation of that business it is necessary to complete an analysis of the goodwill of
the business and any damage to that goodwill resulting from the proposed relocation.”
Attorney Ritchie requested that petitioner contact a specific individual and make
arrangements to provide that person with the information necessary to properly value the
goodwill of his business.
In a notice to vacate dated March 25, 1994, the Agency informed petitioner that he
had 90 days to “quit, vacate, and deliver up . . . possession of the premises.” On May 5,
1994, pursuant to a disposition and development agreement, the Agency sold the property
to a private developer named Dr. Irving Moskowitz. In a certified letter dated May 18,
1994, Beryl Weiner, counsel for Dr. Moskowitz, advised petitioner about the transfer of
title.
In her correspondence, Attorney Weiner referenced the Agency’s notice to vacate
and stated that the 90-day period ended on June 23, 1994. Counsel further stated, “You
were previously informed that Dr. Moskowitz is willing to permit you to remain in
possession for a longer period of time, subject to your vacating the premises on a 6month notice. However, until an agreement in writing is signed between Dr. Moskowitz
and you, you will be required to vacate the premises by June 23, 1994.”
3
On June 8, 1994, another one of Dr. Moskowitz’s attorneys, William E.
Weinberger, wrote to petitioner regarding a request he had made to continue renting the
premises. In accordance with a May 26, 1994 telephone conversation, Attorney
Weinberger “enclose[d] a lease and rider which provides for a tenancy in your current
location at the same rental rate you previously paid.” Counsel also informed petitioner
that the lease was “terminable by the landlord upon six months’ written notice” and he
would be required to vacate the premises if an executed lease was not received prior to
June 23, 1994. Attorney Weinberger sent petitioner another letter on June 10, along with
a revised rider, changing paragraph one “to provide that, unless the landlord exercises its
right to terminate the lease on six month’s [sic] notice, the lease will automatically renew
for additional terms.” Counsel reminded petitioner that the lease and rider had to be
signed and returned by June 23 if he wanted to remain on the premises.
Also on June 10, 1994, the Agency’s relocation agent, Kalian & Associates, sent
Frank Bartha a letter confirming a June 6 conversation. A copy of the letter was sent to
petitioner. The relocation agent apprised Mr. Bartha that a letter regarding a change in
ownership of the premises had been sent to petitioner in error by Dr. Moskowitz’s
attorney. The letter should have been sent to Mr. Bartha instead, in that he was the
master lessee. With respect to relocation benefits, the relocation agent stated that “[a]s
far as relocation benefits are concerned, I stated to you that in that letter an offer of
extension of tenancy was made to Mr. Kong. I suggested that you should meet with Mr.
Kong and find our [sic] if he is planning to pursue this offer of extension. You would be
involved in this process since you are the master lessee. If you and Mr. Kong agree with
the new owner on the extension terms, you will continue to pay rent and Mr. Kong can
continue in business at that location. At the conclusion of the extension term, Mr. Kong
will be eligible for relocation benefits. At that time the remaining term of your lease will
be evaluated and a determination will be made if it has any value.” (Italics added.)
The relocation agent also informed Frank Bartha that, since their conversation, he
had met with petitioner, who was “very interested in applying for the extension past
4
June 23, 1994.” Petitioner told the relocation agent that he had contacted Mr. Bartha and
the new owner in order to make arrangements for an extension agreement.
On June 21, 1994, Frank Bartha, as tenant, executed a new lease with Dr.
Moskowitz, as landlord. Dr. Moskowitz signed the lease on June 26. The lease was for a
term of one year and was subject to termination upon six months’ notice. As a result,
petitioner remained on the premises, conducting business as the Barthas’ sublessee.
On February 19, 1999, Kalian & Associates sent petitioner a number of referrals
for possible replacement sites. In a letter dated February 25, 1999, Dr. Moskowitz gave
petitioner and Frank Bartha notice that the current term of his lease with Mr. Bartha
would end on April 30, 1999 and that he would not renew the lease for another term. In a
responsive letter dated March 29, 1999, petitioner advised Dr. Moskowitz that his notice
of nonrenewal was insufficient to terminate the lease, in that he had failed to give him the
required six months’ notice. In petitioner’s view, the lease consequently had renewed
automatically for another one-year term.
Thereafter, in a letter dated April 6, 1999, Dr. Moskowitz informed Frank Bartha
and petitioner that he was giving notice that he was terminating the lease agreement that
he executed in June 1994 with Mr. Bartha “as of six months from the date of this notice.”
The Bartha/Moskowitz lease therefore was slated to end on October 6, 1999.
On April 28, 1999, petitioner wrote to Dr. Moskowitz, telling him that his April 6
letter and notice of termination was unacceptable. Among other things, petitioner
claimed that Dr. Moskowitz was required to give six months’ notice before the current
term of the lease ended.
On October 8, 1999, Attorney Weinberger informed Frank Bartha in writing that
“the six-month notice period for termination of the Lease that was signed between [Mr.
Bartha] and Irving Moskowitz, M.D. has expired. Demand is hereby made that
the . . . premises be vacated immediately. In particular demand is hereby made that you
have your subtenant, Veisna Kong, vacate the premises so that possession thereof may be
delivered immediately to Dr. Moskowitz.” Attorney Weinberger further advised that
5
unlawful detainer proceedings would be instituted if the premises were not vacated
immediately. When petitioner failed to leave the premises, Dr. Moskowitz filed an action
for unlawful detainer against the Barthas and petitioner. Dr. Moskowitz prevailed and a
writ of possession of real property was issued. On December 21, 1999, petitioner was
evicted from the premises. He has since relocated his donut business.
On July 26, 2000, petitioner filed a claim with the Agency for relocation benefits
in the amount of $72,713.05. On August 29, 2000, petitioner forwarded a second letter to
the Agency, requesting a meeting with the Agency’s appeal board. Petitioner also had
several telephone conversations with the Agency’s agents or employees regarding his
claim for relocation benefits.
PROCEDURAL BACKGROUND
On September 26, 2000, petitioner filed a verified petition for writ of mandate,
along with supporting memorandum of points and authorities. Although petitioner cited
Code of Civil Procedure section 1094.5, thereby characterizing his writ as one for
administrative mandate, the trial court treated his petition as one for traditional mandate
1
under Code of Civil Procedure section 1085. Petitioner asked that a writ be issued,
directing the City to pay him the costs he incurred in relocating his donut shop.
Petitioner also filed a request, asking the trial court to take judicial notice of three Los
Angeles Superior Court cases involving other tenants on the Veady property that were
forced to vacate in 1995 due to the Agency’s acquisition of the property.
In December 2000, the Agency filed its answer to the petition for writ of mandate.
In January 2001, the Agency filed its opposition to the writ petition, as well as a request
that the trial court take judicial notice of the first amended complaint for inverse
condemnation and precondemnation damages filed by petitioner in Kong v. City of
1
We do the same.
6
Hawaiian Gardens Redevelopment Agency et al. (Super. Ct., Los Angeles County,
2
No. BC226103.) Finally, the Agency filed an objection to Kong’s request for judicial
notice.
Thereafter, petitioner filed what he entitled “Administrative Record.” On
January 11, 2001, in response to the Agency’s opposition, petitioner filed a reply and
supplemental brief in support of his writ petition and a separate declaration of his
attorney, Anthony P. Parrille, which included as one of the exhibits excerpts from the
deposition of Leonard Chaidez. This deposition testimony was taken in Moskowitz v. BiRite Meat and Provisions Co., Inc. (Super. Ct., Los Angeles County, No. VC023098), an
unrelated action.
The Agency objected to petitioner’s purported “Administrative Record” on the
ground that it was untimely and no foundation had been laid for any of the exhibits
contained therein. It also argued that review by way of administrative mandate (Code
Civ. Proc., § 1094.5) was inappropriate. The proper avenue was traditional mandate
pursuant to Code of Civil Procedure section 1085. In addition, the Agency objected to
Attorney Parrille’s declaration and the deposition excerpts of Leonard Chaidez on the
ground that they were untimely. With regard to the exhibits, the Agency further argued
that they were irrelevant and that no foundation had been laid.
At the hearing on petitioner’s writ petition, the trial court observed that
petitioner’s “Administrative Record” was not a proper administrative record. The court
noted, as it had observed in its tentative decision, most of the documents in the
“Administrative Record” could be made admissible with a declaration from petitioner.
The trial court did not want to “waste everyone’s time and efforts.” It noted, however,
that if the Agency insisted on strict compliance, it would sustain its objections and
continue the matter to give petitioner time to lay an appropriate foundation. In light of
2
The propriety of the order of dismissal entered in petitioner’s inverse
condemnation case is presently before this court in case number B146142.
7
the trial court’s indication that it was prepared to make a ruling on the merits, the Agency
subsequently withdrew its objections to the “Administrative Record.”
The trial court denied petitioner’s request for judicial notice, concluding that the
other cases were irrelevant. The court granted the Agency’s request for judicial notice
regarding petitioner’s inverse condemnation case “and admitted the evidence by
3
reference” as well as “exhibits to the various pleadings filed.” Lastly, the trial court
sustained the Agency’s objections to Attorney Parrille’s declaration and Leonard
Chaidez’s deposition testimony.
On January 19, 2001, the trial court denied petitioner’s request for writ relief. It
further ordered that its tentative decision be filed and deemed its statement of decision.
The court found that “Petitioner Kong received notification of his possible eligibility for
relocation benefits on July 22, 1993, and a 90-day notice to vacate on March 25, 1994.
Prior to having to vacate, however, the property was sold to Dr. Irving Moskowitz. [¶]
Kong, as per his sublease with sublessors Frank and Dorothy Bartha, continued to occupy
the property and to operate Bartha’s Donuts for the duration of his sublease. Indeed, it
was not until December 1999 – 1 year after Kong’s sublease with the Barthas had
expired, and at least 2 months after the Barthas’ lease with Moskowitz had expired – that
Kong vacated the property. [¶] Kong has thus failed to establish that he vacated the
property as a direct result of Respondent Agency’s acquisition of the property over 6
years earlier. That Frank Bartha (CC to Petitioner) was advised in a letter of June 10,
1993 . . . that Kong might want to pursue an extension of the term during which he could
still be eligible for relocation benefits does not mean that Kong is entitled to benefits
now, over 6 years later, for being ‘forced to vacate’ at the expiration of his sublease.
Indeed, the letter in question contemplates circumstances in which, at the very least,
3
Among the exhibits attached to the first amended complaint were copies of
photographs depicting Bartha’s Donuts prior to its demolition, as well as pictures of the
casino parking lot built by Dr. Moskowitz, in part, where Bartha’s Donuts once stood.
8
Kong vacated before the expiration of Bartha’s lease.” The court therefore concluded
that petitioner “failed to establish that he is a ‘displaced person’ within the meaning of
Govt. Code §§ 7260, et seq., or that Respondent Agency has a clear, present, ministerial
duty to pay him relocation benefits.”
On February 6, 2001, in its amended judgment denying petition for writ of
mandate, the trial court denied the petition “for the reasons set for[th] in the Court’s
written statement of decision incorporated herein by reference.” In addition, judgment
was entered in favor of the Agency.
CONTENTION
Petitioner contends he was a “displaced person” entitled to relocation benefits.
We agree.
DISCUSSION
The resolution of this appeal is not governed by the substantial evidence standard
of review as the Agency maintains. Rather, the trial court’s findings are subject to our
independent review, in that the decisive facts are undisputed. (Ghirardo v. Antonioli
(1994) 8 Cal.4th 791, 799.) Stated otherwise, because this case requires the application
of law to undisputed facts, we review the trial court’s decision de novo. (See Harustak v.
Wilkins (2000) 84 Cal.App.4th 208, 212; Transdyn/Cresci JV v. City and County of San
Francisco (1999) 72 Cal.App.4th 746, 752; Metric Man, Inc. v. Unemployment Ins.
Appeals Bd. (1997) 59 Cal.App.4th 1041, 1050.) Moreover, we review the trial court’s
result, not its reasons. (Economic Empowerment Foundation v. Quackenbush (1997) 57
Cal.App.4th 677, 692, fn. 13.)
Code of Civil Procedure section 1085 permits the issuance of a writ of mandate
“to compel the performance of an act which the law specially enjoins.” (Id., subd. (a).)
9
The writ will lie where the petitioner has no plain, speedy and adequate alternative
remedy, the respondent has a clear, present and usually ministerial duty to perform, and
the petitioner has a clear, present and beneficial right to performance. (Payne v. Superior
Court (1976) 17 Cal.3d 908, 925; Barnes v. Wong (1995) 33 Cal.App.4th 390, 394; San
Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 771. ) Mandate is not
available to compel the exercise of discretion on the part of a public official, but it is
available to correct an abuse of discretion. (Barnes, supra, at p. 395.)
The California Relocation Assistance Law (CRAL) provides state relocation
benefits to persons displaced by state or local acquisitions. (Gov. Code, § 7260 et seq.;
(Peter Kiewit Sons’ Co. v. Richmond Redevelopment Agency (1986) 178 Cal.App.3d 435,
4
444). The benefits payments are intended to compensate a displaced person for, among
other things, “[a]ctual and reasonable expenses in moving himself or herself, his or her
family, business, or farm operation, or his or her, or his or her family’s, personal
property.” (Gov. Code, § 7262, subd. (a)(1); Peter Kiewit Sons’ Co., supra, at p. 444.)
“The crucial issue in determining eligibility for benefits is whether there is a ‘causal
connection between the acquisition [by the public entity] and the displacement which
brings into play the provisions’ of CRAL. [Citation.]” (Peter Kiewit Sons’ Co., supra, at
p. 444.) “[T]he operative date for eligibility under CRAL is the moving date of the
displaced person.” (Superior Strut & Hanger Co. v. Port of Oakland, supra, 72
Cal.App.3d at p. 999.)
The “actual exercise of the power of eminent domain is not a prerequisite to
relocation benefits.” (Superior Strut & Hanger Co. v. Port of Oakland, supra, 72
Cal.App.3d at p. 994.) All that is required is that the property be acquired for a public
purpose. (Ibid.) Here, the Agency admitted that it purchased the property for a public
4
The Eminent Domain Law (Code Civ. Proc., § 1230.010 et seq.) “is clearly
separate in purposes and policies” from the CRAL (Gov. Code, § 7260 et seq.).
(Superior Strut & Hanger Co. v. Port of Oakland (1977) 72 Cal.App.3d 987, 993.)
10
purpose with public monies. The CRAL therefore is applicable if petitioner qualifies as a
displaced person. We hold that he does.
A “displaced person” is “[a]ny person who moves from real property, or who
moves his or her personal property from real property” directly in response to “a written
notice of intent to acquire, or the acquisition of, the real property, in whole or in part, for
a program or project undertaken by a public entity or by any person having an agreement
with, or acting on behalf of, a public entity.” (Gov. Code, § 7260, subd. (c)(1)(A)(i).)
Subdivision (f) of section 6008 of Title 25 of the California Code of Regulations defines
“[d]isplaced [p]erson” as “[a]ny person who moves from real property, or who moves his
personal property from real property, either:
“(1) As a result of a written notice of intent to acquire by a public entity or as a
result of the acquisition of such real property, in whole or in part, by a public entity or by
any person having an agreement with or acting on behalf of a public entity, or as the
result of a written order from a public entity to vacate the real property, for public use; or
“(2) As a result of the rehabilitation, demolition or other displacing activity
undertaken by a public entity or by any person having an agreement with or acting on
behalf of a public entity of real property on which the person is in lawful occupancy or
conducts a business, and the displacement, except as provided in Government Code
section 7262.5, lasts longer than 90 days.
“This definition shall be construed so that persons displaced as a result of public
action receive relocation benefits in cases where they are displaced as a result of an
owner participation agreement or an acquisition carried out by a private person for or in
connection with a public use where the public entity is otherwise empowered to acquire
the property to carry out the public use.”
The Agency contends that petitioner does not qualify as a displaced person, in that
he was not required to vacate the leased premises until after the expiration date of his
sublease with the Barthas. This argument presupposes incorrectly that petitioner’s pre-
11
acquisition sublease with the Barthas was not terminated by the acquisition. The Agency
is mistaken.
In its answer to the petition, the Agency admitted that it acquired the premises
“with public funds for a public purpose.” Although the Agency denied that its
“acquisition was made under threat of condemnation,” the uncontroverted evidence
contained in the “Administrative Record” undeniably establishes the contrary.
In the month prior to the Agency’s acquisition of the property, specifically on
July 22, 1993, the Agency sent petitioner a notice informing him that he was a “tenant
occupant” in a redevelopment project area and that he had to move in order for the
Agency to carry out the project. The Agency further advised petitioner that he was
eligible for relocation advisory assistance and might be eligible for relocation benefits. In
addition, the Agency apprised petitioner that he would not be required to move “without
at least 90 days advance written notice of the date by which [he] must vacate.” He was to
anticipate receiving such a notice at a later date, which notice “[would] represent [his]
formal notice of the vacate schedule and confirm [his] eligibility for reimbursable
relocation expenses.”
On March 25, 1994, after the Agency acquired the premises for a public purpose
from the Veady Family Trust, it notified petitioner that he had 90 days to vacate the
premises. Before the 90-day period expired, however, the Agency sold the premises to
private developer Dr. Moskowitz under a disposition and development agreement. The
premises were part of a larger parcel of property acquired by Dr. Moskowitz to develop a
casino.
Inasmuch as Dr. Moskowitz, at that time, was not ready to develop the premises,
he was willing to allow Frank Bartha to continue to pay rent and petitioner to remain in
business on the premises subject to his vacating of the premises on six months’ notice.
The Agency’s relocation agent, Kalian & Associates, advised Frank Bartha that if he and
petitioner reached an agreement with Dr. Moskowitz regarding “extension terms,” he
could continue to pay rent as the master lessee and petitioner could continue to conduct
12
business on the premises. The relocation agent then represented that at the end of the
extension term, “Mr. Kong will be eligible for relocation benefits.” (Italics added.) The
relocation agent further stated that at the same time, “the remaining term of your
[meaning Frank Bartha] lease will be evaluated and a determination will be made if it has
any value.” A copy of the relocation agent’s letter to Frank Bartha was sent to petitioner.
Petitioner was required to vacate the premises by June 23, 1994, in accordance with the
Agency’s 90-day notice to quit, however, unless a new lease agreement was executed.
Had this been a simple purchase by the Agency, the Barthas’ master lease with the
landowner and petitioner’s sublease would have continued uninterrupted. (See generally
Kirk Corp. v. First American Title Co. (1990) 220 Cal.App.3d 785, 809; Rosenkranz v.
Pellin (1950) 99 Cal.App.2d 650, 652-653; Friedman et al., Cal. Practice Guide:
Landlord-Tenant (The Rutter Group 2001) ¶ 2:515, p. 2B-156.) Petitioner was able to
continue operating his donut shop after Dr. Moskowitz acquired the property from the
Agency only because Frank Bartha entered into a new lease agreement with Dr.
Moskowitz, however. Thus, the only reasonable construction of the evidence is that the
original master lease between the Barthas and the Veady Family Trust was terminated as
a result of the Agency’s taking of the property (see Code Civ. Proc., § 1265.110) and
replaced with the Bartha/Moskowitz lease. As for the original sublease agreement
between petitioner and the Barthas, that agreement terminated according to its own terms
5
as a result of the taking. That petitioner ultimately was not required to vacate the
premises until after what would have been the last day of his original sublease with the
Barthas (December 31, 1998) does not compel a contrary conclusion. Had Dr.
Moskowitz needed the premises earlier, he could have terminated his lease with Frank
Bartha well before that date.
5
The condemnation provision in the original sublease provided that “[i]f the
Premises or any portion thereof are taken by the power of eminent domain, or sold by
Landlord under the threat of exercise of said power (all of which is herein referred to as
‘condemnation’), this Lease shall terminate as to the part taken as of the date the
condemning authority takes title or possession which ever occurs first.”
13
As a subtenant on the premises, petitioner’s post-acquisition ability to operate his
donut shop on those premises was dependent wholly on the existence of the lease
between Frank Bartha and Dr. Moskowitz. Whatever contractual entitlement petitioner
originally had with the Barthas to remain on the premises to December 31, 1998 no
longer existed, since the Barthas themselves did not have a contractual leasehold interest
in the property to that date specific. Under the new one-year contractual arrangement,
Frank Bartha was permitted to pay rent (as the tenant) and petitioner was permitted to
conduct his business (as the subtenant) subject to termination on six months’ notice. In
the event there was no termination, the agreement automatically renewed for one-year
terms. This arrangement enabled Dr. Moskowitz to continue receiving income from his
property until such time as he needed the premises for his development and then to rid
himself of his tenant with only six months’ notice when that need arose.
If petitioner had elected to relocate his business in 1994 when Dr. Moskowitz
acquired the property from the Agency, there is no question that petitioner would have
been entitled to relocation benefits. We see no reason he should have to forego such
benefits simply because a mutually beneficial agreement between Frank Bartha and Dr.
Moskowitz was reached enabling petitioner to conduct business on the premises until
such time as Dr. Moskowitz needed it for his redevelopment project. That petitioner did
not vacate the premises for six years after the Agency’s initial acquisition of the premises
is irrelevant. The critical factor is not when the property was vacated but why it was
vacated.
In this case, petitioner did not forfeit his eligibility for relocation payments by his
continued subleasing of the premises from the Barthas after the Barthas entered into a
post-acquisition lease with Moskowitz. (Albright v. State of California (1979) 101
Cal.App.3d 14, 21; Superior Strut & Hanger Co. v. Port of Oakland, supra, 72
Cal.App.3d at p. 996.) This is not a case in which the tenant was ousted due to his failure
to pay rent during his post-acquisition subtenancy, breaching the landlord-tenant
agreement, as in Baiza v. Southgate Recreation & Park Dist. (1976) 59 Cal.App.3d 669,
14
674. This also is not a case in which a tenant was forced to move due to the natural
expiration of a master lease and thus the reversion of the right of possession of real
property to its original governmental owner as in Stephens v. Perry (1982) 134
6
Cal.App.3d 748, 756-758.)
In reliance on Peter Kiewit Sons’ Co. v. Richmond Redevelopment Agency, supra,
178 Cal.App.3d 435, the Agency argues that petitioner did not vacate the premises
because of its acquisition of the property or its order to vacate. Rather, petitioner was
required to vacate the premises because he unlawfully occupied the property after the
expiration of his sublease. This argument is disingenuous and once again presupposes
incorrectly that the original sublease did not terminate as a result of the taking.
In Peter Kiewit, a city redevelopment agency purchased a very large parcel of
property, a portion of which was occupied by plaintiff pursuant to a lease set to expire on
March 31, 1980. The agency assumed all existing leases on the property. Plaintiff
unsuccessfully attempted to negotiate an extension of its lease. The agency notified
plaintiff that if it intended to remain on the property past March 31, 1980, it would have
to do so under a new lease. No new lease was executed, however. After failing to vacate
the property by March 31, 1980, plaintiff tendered to the agency the amount of rent it had
been paying. The agency refused to accept the tendered payment and filed an unlawful
detainer action. Prior to trial, plaintiff vacated the property and the unlawful detainer
action was settled. (Peter Kiewit Sons’ Co. v. Richmond Redevelopment Agency, supra,
178 Cal.App.3d at pp. 438-439.)
The court concluded that the agency’s acquisition of the property had been by
purchase not condemnation and thus did not operate to terminate plaintiff’s lease. The
6
Government Code section 7260, subdivision (c)(2)(A), provides that “[a]ny person
who has been determined to be in unlawful occupancy of the displacement dwellings” is
excluded from the definition of “displaced person.” This statutory provision is
inapplicable here, in that petitioner was not in possession of a “dwelling.” Rather, he was
in possession of commercial property.
15
court further rejected plaintiff’s claim of entitlement to relocation benefits under the
CRAL. The court observed “a tenant holding under a lease which has not expired at the
time property is acquired for public use and who continues lawfully in possession of the
premises after termination of the lease will qualify as a ‘displaced person’ under section
7260, subdivision (c).” (Peter Kiewit Sons’ Co. v. Richmond Redevelopment Agency,
supra, 178 Cal.App.3d at p. 445.)
Application of this rule led the court to conclude that plaintiff did not qualify as a
displaced person. The court reasoned that “[w]hen the term of a lease expires but the
lessee holds over without the owner’s consent, he becomes a tenant at sufferance.
[Citation.] ‘Since the possession of the tenant at sufferance is wrongful, the owner may
elect to regard the tenant as a trespasser . . . . ’ [Citation.] If instead the owner accepts
rent from a tenant at sufferance he accepts the tenant’s possession as rightful and the
tenancy is converted into a periodic one. [Citations.] When defendant refused plaintiff’s
tender of rent defendant was electing to treat plaintiff’s continued possession as
unlawful.” (Peter Kiewit Sons’ Co. v. Richmond Redevelopment Agency, supra, 178
Cal.App.3d at p. 445.) The court concluded that the leasehold did not terminate as a
result of the agency’s acquisition of the property but rather terminated by its own terms.
(Ibid.)
Peter Kiewit is factually distinguishable. It is undisputed that at the time the
Agency acquired the premises, petitioner lawfully occupied the premises pursuant to an
assignment of a sublease. However, unlike in Peter Kiewit and despite the Agency’s
protestations to the contrary in this case, the acquisition was effected by condemnation or
the threat of condemnation, with the taking eventually resulting in the termination of the
original master lease and the original sublease. Thereafter, petitioner was able to
continue conducting his business on the premises as Frank Bartha’s subtenant since Mr.
Bartha and Dr. Moskowitz had executed a new lease agreement.
Although Dr. Moskowitz ultimately had to initiate unlawful detainer proceedings
to effect petitioner’s ouster, we conclude that petitioner did not forfeit his right to
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relocation benefits as a result. Petitioner’s decision to remain on the premises in the face
of Dr. Moskowitz’s six months’ notice of termination stemmed from petitioner’s belief,
whether right or wrong, that the lease between Frank Bartha and Dr. Moskowitz
automatically had renewed for an additional one-year period due to Dr. Moskowitz’s
failure to terminate the lease six months prior to the end of the lease term. In any event,
the crucial factor compelling the conclusion that petitioner is entitled to relocation
benefits is the “‘causal connection between the acquisition [by the public entity] and the
displacement.’” (Peter Kiewit Sons’ Co. v. Richmond Redevelopment Agency, supra, 178
Cal.App.3d at p. 444.) The bottom line is that petitioner was required to move and thus
was displaced for a public project. Inasmuch as petitioner established that he was a
“displaced person” within the meaning of Government Code section 7260 and that the
Agency had a clear, present, ministerial duty to pay him relocation benefits, his petition
should have been granted.
DISPOSITION
The order is reversed. On remand, the trial court is directed to vacate its order
denying Veisna Kong’s petition for writ of mandate, to enter a new and different order
granting the petition, and to determine the amount of relocation benefits to which
petitioner is entitled under the California Relocation Assistance Law (Gov. Code, § 7260
et seq.). Petitioner is awarded his costs on appeal.
SPENCER, P.J.
We concur:
ORTEGA, J.
MALLANO, J.
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