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Balistreri v. Rosenthal11/24/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Vincent Balistreri brought this action against his former landlord, Peter Rosenthal, to recover damages for eviction in violation of San Francisco Residential Rent Stabilization and Arbitration Ordinance (hereafter Rent Control Ordinance). Balistreri now appeals from a judgment in favor of Rosenthal entered following an order granting summary adjudication of two causes of action and the voluntary dismissal with prejudice of the remaining cause of action. We affirm.
PROCEDURAL BACKGROUND
The original complaint, filed on March 28, 2001, alleges that Rosenthal, the owner of an apartment building, sent to Balistreri a 30-day eviction notice, causing him to vacate his apartment in the building, and that Rosenthal did not have grounds to evict Balistreri under the Rent Control Ordinance. On the basis of these facts, the amended complaint alleges three causes of action: (1) a right to treble damages, attorney fees and costs under section 37.9, subdivision (f), of the Rent Control Ordinance, (2) negligent breach of the right to quiet enjoyment of the leased premises, and (3) fraud.
After a brief period of discovery, Rosenthal moved for summary judgment or, in the alternative, summary adjudication on the ground that the first two causes of action were barred by the applicable one-year statute of limitation and that one or more of the elements of the cause of action for fraud could not be established. The trial court denied the motion for summary judgment but granted summary adjudication in favor of Rosenthal on the first two causes of action based on the statute of limitations. Balistreri subsequently dismissed with prejudice the cause of action for fraud. On January 16, 2003, the parties stipulated to entry of judgment in favor of the defendant Rosenthal based on the dismissal and summary adjudication of the first two causes of action.
FACTUAL BACKGROUND
The record of the summary judgment motion reveals that, in 1998, Balistreri occupied unit No. 2 of 2829 Steiner Street, where he had lived for approximately seven years. For several years, he had shared the apartment with his girlfriend, Jennifer Cherry. On August 1, 1998, his landlord, Rosenthal, sent Balistreri a letter, which said in pertinent part: "As you are aware, your lease on apartment No. 2 at 2829 Steiner Street expired on July 31st, 1998. As such, I would like to take possession of these premises on September 30th 1998. This should give you ample time to find other accommodations. [ ] You might consider the apartment I am currently living in, at the corner of Scott and North Point. The apartment is approximately the same size and the neighborhood is wonderful. You can reach me at work during the day to make arrangements to see the apartment."
On September 28, 1998, Cherry sent an e-mail to Rosenthal, in which she proposed to vacate the apartment on October 28, 1998, and noted that she had spoken "with the San Francisco Rent Board . . . to inquire about our thirty days' notice." The same day, she mailed a letter to Rosenthal confirming the e-mail and asking for seven years' interest on the security deposit. Balistreri did not himself talk to Rosenthal about the notice.
In a declaration filed in opposition to the motion for summary judgment, Balistreri stated that he understood that Rosenthal gave them the notice to
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