Nativi v. Deutsche Bank National Trust Co., 223 Cal. App. 4th 261 (2014)

Citation: Nativi v. Deutsche Bank National Trust Co., 223 Cal. App. 4th 261 (2014)
Parent Document: Nativi v. Deutsche Bank National Trust Co., 223 Cal. App. 4th 261 (2014)
Jurisdiction: California (state)
Effective Date: 2014-01-23
Original Source: https://www.courtlistener.com/opinion/2650742/nativi-v-deutsche-bank-national... ↗

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12
Appellants showed good cause for their late filing of the declaration and
respondents did not object to its filing.
13
Appellants' suggestion that the Bank could have protected them by self-help
means, such as by changing the locks, while post-foreclosure occupants were living there
is not well taken. (See Spinks v. Equity Residential Briarwood Apts., supra, 171
Cal.App.4th 1004, 1037-1039; see also Jordan v. Talbot (1961) 55 Cal.2d 597, 605
["Regardless of who has the right to possession, orderly procedure and preservation of
58
see also Code Civ. Proc., § 1161a, subd. (b); Stats. 2008, ch. 69, § 6, p. 179 [former
§ 1161b]; Bank of America, N.A. v. Owens (2010) 903 N.Y.S.2d 667, 672 ["if a successor
property owner has credible evidence that a resident of foreclosed property is not a bona
fide tenant, the successor owner is free to bring an eviction proceeding against the
resident without providing the ninety days advance notice mandated by the PTFA"]).
As to the November 2009 letter from the Bank's attorney, the Bank's legal position
was ostensibly predicated on the fact that the notice of default had been recorded before
appellants entered into their most recent lease.14 Where a landlord does not physically
interfere with tenants' possession and merely wrongfully serves a notice to quit, tenants
can recover damages for a wrongful eviction only if the landlord acted with malice. (See
Asell v. Rodrigues (1973) 32 Cal.App.3d 817, 825.) The mere threat to resort to legal
process, made in good faith, "cannot amount to a constructive eviction." (Lindenberg v.
MacDonald (1950) 34 Cal.2d 678, 683-684.) A "landlord is not liable for a breach of the
implied covenant [of quiet enjoyment] or a constructive eviction when he wrongfully
commences an eviction proceeding in good faith, even though the tenant vacates the
premises in response to the wrongful notice to quit." (7 Miller & Starr, Cal. Real Estate
(3d ed.) § 19:159, p. 504, fn. omitted.)
Beyond the Bank's letter threatening an unlawful detainer action, however, there
was evidence from which a reasonable trier of fact could find that the third-party conduct
preventing appellant Nativi's return to the garage unit in October 2009 was attributable to
Diaz and ultimately to the Bank. The evidence indicated that, with respect to the
Stoneylake property, Advisors was responsible for informing the property's occupants of

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