Page 1
Court of Appeal:
Judge May Order One of Two Warring Co-Tenants Ejected
By a MetNews Staff Writer
The Fifth District Court of Appeal held yesterday that a trial judge erred in declining to decide which of two combative roommates would move out of an apartment they shared, instead delegating the choice to the landlord.
Although Merced Superior Court Judge Donald E. Shaver granted a three-year domestic violence restraining order against Richard Gallegos, he denied the request of his girlfriend, Nathalie Weil, for a move-out order.
Gallegos leased the apartment and paid the rent for the first and last months, but when Weil moved in, he had her name added to the lease. In light of the lease being in the names of both tenants, Gallegos reasoned that he could not dictate who would remain and who would go, telling the parties:
“[W]hat the two of you have to do is just tell the landlord, one of us has to move out. We both want to have the apartment. You decide. And the landlord is just going to have to decide who gets to live there and who they want to have on the lease...because...if one of you moves out and you’re both on the lease, they’re still going to charge the party who’s not living there. If somebody moves out, they’ll go after the other party. So the other party will continue to be liable for rent even though you’re not living there.” Gallegos said he could not order the landlord “to let one of you stay there,” declaring:
“So that’s who’s going to decide it, not me.”
Fifth District Opinion
The Fifth District reversed in an unpublished “By the Court” opinion signed by Acting Presiding Justice Charles Poochigian and Justices Jennifer R.S. Detjen and Thomas DeSantos. The panel pointed to Family Code §6321(a) which says:
“The court may issue an ex parte order excluding a party from…the common dwelling of both parties….for the period of time and on the conditions the court determines, regardless of which party holds legal or equitable title or is the lessee of the dwelling.”
The opinion sets forth: “Here, the trial court decided not to issue a move-out order because it believed it did not have the power to exclude Gallegos from the couple’s apartment since both Weil’s and Gallegos’s names were on the lease. Section 6321, subdivision (a), however, clearly gives the trial court the power to exclude Gallegos from the parties’ apartment ‘regardless of which party ... is the lessee of the dwelling’ (Italics added.)…. Thus, the trial court was mistaken when it stated it did not have the power to exclude Gallegos from the couple’s apartment. Not only could it exclude Gallegos, but it also had the power to impose conditions, such as who would pay the lease and utilities….
“As Weil asserts, the trial court also was mistaken in believing the landlord could choose which of the two tenants on the lease would remain in the apartment, as the landlord does not have the legal authority to order the exclusion of one over the other. The landlord could not terminate the tenancy of either Weil or Gallegos without just cause, as they are protected by Civil Code section 1946.2, which prohibits termination of a tenancy without “just cause1’ where, as here, an adult tenant has been added to the lease after an existing tenant has occupied the property for more than 24 months”
Other Actions Barred
The jurists added that under Civil Code §1946.2, the landlord was powerless to change the locks, absent a court order, and an action in unlawful detainer could not be brought absent a breach of the lease, and if there were a basis for such an action, both tenants would be evicted.
Gallegos’s judgment was reversed “with directions for the trial court to reconsider the request for a move-out order in accordance with the views expressed in this opinion.”
The case is Weil v. Gallegos, F083832.
Copyright 2022, Metropolitan News Company