“The incentives are out of whack,” says Eric Post, a tenant’s rights attorney with BASTA, Inc. The past two years have seen a dramatic increase in evictions, he says. Why? Because that is the simplest way to raise the rent.
Eric talks with Jeff Lewis and Tim Kowal about the flaws in California’s landlord-tenant legal system, the near-impossibility of staying eviction judgments pending appeal, and the important differences between appeals in the appellate division and the Court of Appeal.
Eric also explains why it can be fairly easy to forum shop a case up to unlimited civil.
Finally, the discussion turns to Judge Carter’s bold effort to solve a piece of the Los Angeles homeless problem via injunction, though ultimately reversed by the 9th Circuit last year.
Eric Post’s LinkedIn profile.
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Eric Post 0:03
But in evaluating appeal, I feel like I have a pretty good sense. What is never going to work with this with this panel and what is going to be a guaranteed winner.
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news cutting from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Tim Kowal 0:26
Welcome, everyone. I'm Tim Kowal.
Jeff Lewis 0:28
And I'm Jeff Lewis. The California appellate podcast is a resource for trial and appellate attorneys. Tim and I are appellate specialists, but both our practices are split about evenly between trial and appellate courts. In each episode, we bring our Totti, our audience practice tips and legal news they can use in their practice.
Tim Kowal 0:45
Before we introduce our guests today, a quick thank you to our podcast sponsor casetaxt case taxt is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's casetext.com/ca LP.
Jeff Lewis 1:09
All right. Today we welcome attorney Eric post to the show. Eric has been involved in the housing and homeless rights movement in Los Angeles since 2011. advocating for the rights of tenants, but also the rights of unhoused communities to access social services and public benefits to be free from criminalization and discrimination and to remove barriers and access to housing. are currently serves as a senior tenants right attorney and the director of the appeals unit for the Los Angeles based nonprofit basta Inc, where he represents tenants and appeals in complicated eviction cases. And an affirmative case is holding landlords accountable for slum housing, discrimination, illegal overcharging and harassment. Eric is a proud graduate of Howard University School of Law. Eric, welcome to the podcast.
Eric Post 2:00
Oh, gentlemen. Thanks for having me. Yeah.
Jeff Lewis 2:03
So tell tell me, is there anything about you or your practice that of note that I left out of your summary that I just read about your background?
Eric Post 2:11
No. You know, at this point, about 90% of my practice consists of representing tenants appeal, most of it is with the Appellate Division and Superior Court with a growing number of cases before the Second District Court of Appeal. A lot of this work involves a lot of provision of technical assistance to trial level attorneys, as well as technical assistance to other organizations in the county in the state who are pursuing appeals. So that's kind of you know, the, the rest of my practice is a little bit of the you know, as I indicated, the some of the affirmative cases and some of the more complex, unlawful detainer matters. Okay.
Tim Kowal 2:46
So whenever I see a word in all caps, like bosta, I think acronym, it's gotta be an acronym for something. What is Boston?
Eric Post 2:55
You know, that would that would make sense, but no, no, it's not actually an acronym. bosta in Spanish means enough, or stop. And it's kind of an expression that people use when they're, they're kind of fed up. And so boss dB, for example, is enough. And that's, that's where the name comes from.
Tim Kowal 3:18
Got it. I like it.
Jeff Lewis 3:20
All right. Did I read somewhere that bosta pioneered a strategy of having tenants facing eviction invoke a jury trial?
Eric Post 3:29
Absolutely. And that's really what we that's the main thing that we've kind of done to change the tenants rights movement here in California. Our director, Danny brims on he was previously a trial attorney working at Christianson, Miller Fink Glasser wheel, which I believe is called last wheel now. And you know, he just, you know, some of the cleaning crew at his office kept asking him for to look at legal papers, when they were facing eviction. And he, he decided to jump in and start helping out some folks. And, you know, through kind of word of mouth, he soon became inundated with tenants asking for his help, and began taking more and more of those cases and realizing that there are both a lack of access to services available for many lower income tenants, especially those without feeling valid immigration status, but also, you know, that there are innovative ways that we can fund tenant representation. So yeah, I mean, you know, so so, you know, because we had some of that background of attorneys coming from non legal aid organizations, you know, that brought in a lot of new blood and insight into the tennis rights community. And rather than kind of adopting the kind of old tactics and strategies that were kind of more typical of legal aid organizations, we brought kind of a more kind of big law perspective into that including a more aggressive approach to eviction litigation. So part of that was requested jury trials, which is always a really valuable approach.
Tim Kowal 4:57
Eric, you mentioned that Boston He uses some innovative ways of funding these tenant rights lawsuits. What? Give us an example? How are you funding these tenants rights lawsuits where, you know, we're other attorneys might not who might be willing to step in just can't do so because of the economics,
Eric Post 5:13
certainly. So we're nonprofit, and you know, many traditional legal aid organizations, they're funded by the federal Legal Services Corporation. But due to a lot of messy politics, racism and hostility, that those who represent poor people, a lot of funding through the Legal Services Corporation comes with a lot of strings, and namely the prohibition on representing most folks who lack invalid immigration status. And, you know, so so that excludes just a huge amount of our communities. And then also, you know, foundational funding can be really onerous, to secure and you have a lot of nonprofits who who end up spending more of their time trying to chase grants rather than actually providing the services. And sometimes those come with their own strings attached, that kind of limit the sort of work that can be done and the sort of tactics organizations can employ. So you know, a lot of people within the, you know, access to justice movement have been trying to find alternative methods to support their work outside of the traditional grant chasing and the Legal Services Corporation. So, you know, bosta, we have historically upload employed a, what's called a low Bono model. So our clients usually pay us like a flat rate. For full scope representation, it's usually about one month's worth of rent, give or take a little. And there's also a contingency agreement if a monetary settlement is reached. And there's also as part of that an agreement to assign us the right to collect on any attorneys fees. So you know, this, this allows us to kind of avoid a lot of the restrictions that would exclude much of our client base who are traditionally immigrant Latino families. So you know, but as you can imagine, you know, like $800, for full scope representation, including aggressive discovery motion practice extended jury trials, this this often means that we're operating at a loss. So So attorney fee recovery is really crucial to our work. And we aggressively pursue fee motions. And a good portion of my appellate work involves fee recovery. It's also like a good deterrent for, you know, landlords who are filing frivolous cases. But you know, even with fee recovery, access to justice for poor folks is costly. So we also have kind of pioneered the shifting of these cases from just a defensive position to actually after we represent a tenant and prevail on defending against an eviction, we then turn around and we sue the landlord for a grossly substandard conditions harassment, violation of local law, and that those lawsuits can subsidize the direct tenant representation that we do on our eviction cases. Interesting. Yeah, we've recently actually took our one kind of foray into accessing governmental grants. And we're currently receiving some funding through the county's stay housed la project, which is trying to provide free legal representation to low income persons facing evictions. It's not without its hiccups, but it has allowed us to, you know, provide access to justice for a lot of folks who, because of the COVID crisis, can't even afford to pay that one month's rent.
Jeff Lewis 8:11
Wow. Well, listen, I know a lot about appeals. I've done over 200. I know next to nothing about appealing to the Appellate Division of the Superior Court. So can you tell us, first of all, how many of your cases go up on appeal? And when you appeal these eviction cases? What issues come up frequently?
Eric Post 8:29
Well, you know, it's, it's interesting. So, you know, the Appellate Division is only for the limited unlawful detainer matters. And, you know, the way that it's valued is it there's a lot of fallacies in terms of the valuation because, you know, especially in a rent controlled market, like the value of a tenancy can be really large, it could be, you know, six figures or more even. But, you know, of course, you know, the complaint gets to determine whether it's limited or unlimited. With a couple of little exceptions. We're seeing a growing number of cases being filed in unlimited, and that's bringing us into the Court of Appeal more regularly. But as a general matter, we're going straight into the Appellate Division on most of our cases. And, you know, there's a number of different issues that come up a lot in our appellate division cases. You know, as I mentioned before, a fair amount of my my practice involves fee recovery issues. And, you know, the advantage of pursuing those appeals is that you can get fees on fees. So they're, they're kind of self supporting. And, you know, outside of that, you know, what, what I have been dealing with a lot, especially the last couple of years are fairly recent laws that have been passed that courts have really struggled to implement and enforce so often, you know, often it's really basic appellate practice in terms of just going through statutory construction principles, and being able to kind of identify the kind of legal calculus that courts are supposed to employ and kind of how they they fail to employ that legal calculus.
Tim Kowal 9:57
Yeah. Let me ask you if you're good you I mentioned that I had two questions based on on something you said that a growing number of these eviction cases are actually being filed as unlimited civil cases. And can you give us an example of how that happens is that just if there is an allegation of back rent that exceeds the statute, the jurisdictional minimum, then that can take the entire eviction action into unlimited civil?
Eric Post 10:21
Yes, absolutely. And that, and that's what it is. And that's those are the cases that we're seeing now are those cases in which rent is accrued? So significantly, or the the rent in itself was pretty, pretty large, that it adds up pretty quickly and gets over that threshold
Tim Kowal 10:36
amount? So it sounds like you are seeing you're you're working a lot, both in the Appellate Division of the Superior Court and in the Court of Appeal, what are some important differences that you're seeing, you know, are you having to kind of juggle and make sure Wait a minute, I'm in I'm in the Court of Appeal on this one. So the rule is different.
Eric Post 10:53
Well, you know, so yeah, exactly. And it's the nuanced. It's just the small rules. You know, I mean, most of the differences are fairly minor deadlines are shorter, word clap, word count limits are lower.
Tim Kowal 11:04
You're talking about the Appellate Division, correct? Yes, exactly.
Eric Post 11:07
Some of the things that are required in Court of Appeal briefs aren't required for briefs in the Appellate Division in formatting is different, like, for example, like the Appellate Division and doesn't currently do e filing. So we don't have to worry about the stuff that that is the bane of the existence of an appellate attorney of doing all the bookmarking and hyperlinking and all the other stuff for submission for electronic submissions with the Court of Appeal. One of the biggest differences that I generally deal with is that, you know, I generally deal with the same four judges every day, rather than, say, eight different divisions with four different justices, each within just the second discharge, this can be both a great thing, but also a discouraging thing. You know, a small fraction of decisions and the appellate divisions get published, and they generally don't like taking judicial notice of prior opinions that are unpublished. So you know, that that that often leads to inconsistent decision making and evaluate, but but in evaluating appeal, I feel like I have a pretty good sense, what is never going to work with this with this panel in what is going to be a guaranteed winner. And, you know, although I probably ever since I start, I started this project with bosta, I, you know, I probably have accounted for about 15 to 20% of their caseload. And, you know, while I've made their job more difficult, I know, they respect my work, and they appreciate the time and the thought I devote to them, and especially, you know, considering that the opposing counsel, and a lot of these cases, just don't really respect that appellate representation is different than trial level representation. So that always kind of puts me in a good position. But you know, I mean, I guess a lot of it is just the kind of certain benefits of being a big fish in a small pond. And, you know, it also allows me to kind of try again, on certain issues and see if I get a different result, which which does, in fact, happen. But you know, in terms of, you know, a lot of it is just the smaller minutia of your appellate briefing and the processes. It's, it's really just the differences in deadline, you got to use a different font, you know, formatting requirements are different, but substantively, it's identical. You know, we're dealing with standard review, dealing with summary facts, we're dealing with substance, we're dealing with appealability. We're dealing with miscarriage of justice and harmful air. You know, it's all the same sort of stuff that you would engage with in any appellate representation.
Jeff Lewis 13:29
Well, can I ask you when you're involved in an appeal in the Appellate Division, at that point in time in the process? Are you still dealing with possession? Is that being litigated? Or is possession done with by that point?
Eric Post 13:41
That's, that's one of the most depressing aspects of unlawful detainer appeals. So unlike a lot of other contacts, there is no automatic stay, even if you try to post a bond, even if you do anything like that. So as a result, most attendants in my appeals have already been removed from their homes. And, you know, we can seek a stay pending appeal, which we almost always try to do if the family doesn't have another place to go. But you know, there's not real there's not a lot of substance in terms of limits on a trial courts discretion on whether or not to grant that stay. And it's really enraging, because it's like frustration of the purpose of the appeal doesn't matter, the fact that a family is going to be thrown out on the street and has to pitch a chance or live in their cars. You know, that's not extreme hardship for a lot of judges for some reason. And when those those states pending appeal motions are denied, I then you know, tried to do a writ to the Appellate Division and the Appellate Division basically comes back and says, This is as discretionary as it gets. So we're not going to, you know, put a bound on the the trial court's determination on whether a stay pending appeal is in the interest of justice or the equity support such a determination. It's really depressing now.
Tim Kowal 14:58
You mentioned the standard for Getting a stayed pending appeal of a of an eviction judgment and its its extreme hardship to the tenant. Let's go to civil procedure 1176. I've tried. I tried to get a stay once in my career under that it was not successful, even though I thought I had a very sympathetic case. I don't know of any other standard in the law that uses the word extreme in in the statement of the standard extreme, it's not merely unreasonable. It's not merely unusual. It's extreme. Have you? Do you have any are there? Is there a typical case or an exemplar case? Have you had any cases that met that standard of extreme hardship to the tenant that would suffice to get a stay of the eviction judgment pending appeal?
Eric Post 15:44
In middlee, most of the times that I have obtained a stay pending appeal, it's because the landlord attorney did not oppose it. And so it's really discouraging. And I've had one of the kind of horror stories in terms of a stay pending appeal is that I had a set of different appeals dealing with the exact same issue with the exact same building with near identical everything effects. And, and one of the appeals we had already prevailed on and the Appellate Division came back and said, this was not a proper eviction. And, and that because they the building was wasn't a legal unit and didn't properly register and comply with local law. So, you know, I had this other case that was pending, you know, my trial trial attorney colleague, does judicial notice to try to get in front of the trial judge the, this this recent Appellate Division decision saying, Hey, this is going to be reversed. And then we do a stay pending appeal. And, you know, the client was going to go straight onto the street, you know, limited English proficiency, you know, disability, you know, and literally had no place to go was going to just sleep in his car, and the writing was on the wall, we knew that the reversal was going to happen. And and everybody knew it, it wasn't something that we can really turn the blind, blind eye to. And not only did the trial judge just find that, you know, that landlord, recovering possession for an illegal building was something that was so pressing, and that, you know, homelessness, and a frustration of appeal, when we know that it's going to be reversed, that that's not extreme hardship, sufficient extreme hardship. And and like I said, I went to the Appellate Division on that one I did, because less than 76 has a statutory read, I did a a statutory read, and the Appellate Division basically came back and said, Well, you know, the trial judge didn't feel it was enough. And, you know, extreme hardships, as Tim identified is such an amorphous standard, that we're not going to provide any balance to that we're not gonna, you know, limit the discretion in any way or form. So if you so it's really discouraging. Now,
Tim Kowal 17:48
if you can't count on getting a stay of the eviction judgment pending appeal. How much does that depress the not only the chances, just the practicality of going up on appeal? I bet every now and then I'll have I'll have a attendant call me and, and wants to appeal an eviction judgment? You know, and I'll say, Well, what, what do you want? Do you want more than just money? Do you want possession back? No. Sometimes they'll tell me Yeah, I want possession back. Is that practical? Does the after a successful appeal on behalf of the tenant, are they sometimes rewarded possession?
Eric Post 18:20
It's really discouraging. And I think I think, you know, part of your point is kind of the utility of some of the appeals. And I think, you know, one of the reasons we would pursue a particular appeal is because it has a potential issue that are going to that is going to impact other tenants, in other cases, not even necessarily for the help that discreet tenant, but you know, after you prevail on appeal, you can seek restitution. And, you know, unfortunately, that's also a highly discretionary determination. So so the sort of, you know, recovery for restitution is, you know, the range is huge. But, you know, there there is some interesting case authority, the issue is and often as a strategic perspective, after we prevail on appeal, we'll ask the landlord like, Hey, do you want to put the clients back in there, and almost always, the landlord is gonna say, Hey, I rented it out to somebody else. Now, you know, courts with their equities are, you know, rightfully not going to dispossess an innocent third party tenant to put back in somebody. So generally, the only real remedy is money. And it's a highly discretionary determination. It hardly compensates the tenants for any of their injuries, but at least provide some sort of of restitution for it. Now another option rather than doing a restitution motion throughout its through that case is to file a separate civil suit and, and usually on basis of breach of contract, you know, breach of covenant Fair Dealing, things like that.
Tim Kowal 19:51
What are you seeing Eric from your colleagues on the other side of the table the the attorneys representing landlords are they are they are there, are there lessons that you would like to impart to them maybe a perspective of, you know, maybe have some have some sympathy for these tenants, especially in a COVID. area, or are they just, you know, doing what their ethical duties of zealous advocacy require on behalf of their landlord? Clients?
Eric Post 20:19
Yeah, I mean, I think I think when it comes to landlord attorneys, generally it is they're just hired Dunn's and they don't really, in many of them, I'm of the view just kind of employ a cognitive dissidence to the consequences of their actions. But you know, and I don't I don't have too much respect for for people who have evict families for a living, particularly when the reason why people are getting evicted is because their disabilities, stagnant wages, unemployment, COVID, things like that. And you know that the thing that that we have to deal with a lot when it comes to landlord attorneys is that you know, many of the attorneys, you know, they spent decades largely bullying tenants and winning on default, or going up against pro PERS. And as a result, they're just sloppy. Most cases that are won by tenants, both, both at the trial level and on appeal are won because the landlord or their attorney could not draft a legally sufficient notice and couldn't complete the Judicial Council form complaint correctly. So I think a lot of landlord attorneys, if they actually spent a little bit more time investigating the case prior to filing and devoted some attention to like doing legally sufficient notices and complaints, the entire system would work better. But what we see is a lot of sloppiness, and, and once they're faced with substantive opposition, they generally just flail and disparage tenants. And that often is not very persuasive to judges and juries. Interesting. But one thing that's really important thing to remember about is the incentives are just out of whack. You know, why would a landlord attorney spend more time on a case when they are likely to win on a rubber stamp default, or go up against a pro per or an unskilled inadequately trained and under resourced attorney? I mean, why why if you can evict a family of four a filing fee and a couple 100 bucks for an attorney to prepare your documents? Why Why would you have that attorney do any more work any more diligence when most of the time they're gonna win anyway? But I think I think if they just spent a little bit more time on the front end evaluating the cases, and you know, examining the landlord's case file to determine if there are any potential defenses, it would it would make everybody's job a lot easier if they just spent a little bit more time on that upfront.
Jeff Lewis 22:36
Or does bosta ever get involved in amicus brief paying for tenant tenants rights issues that might be pending in the Court of Appeal or the California Supreme Court?
Eric Post 22:45
Sure, sure. You know, although, you know, the problem is that eviction cases rarely even get to the Court of Appeal. So that's one of the much less the Supreme Court and you know, the Appellate Division usually doesn't see Amicus is very helpful. And to their credit, for many cases, it really is completely unnecessary. But there's a network of organizations across the state, largely connected through the Western Center for Law in poverty, and we all kind of sign on to each other's Amicus is or an MCI and when time permitted, you know, all actually submit a brief and supportive another organizations case. But it's it's usually done by you know, a couple of organizations will put together an amicus brief and then get support from a number of other organizations across the state.
Tim Kowal 23:31
Now, Eric, last year, we had one of your colleagues, Fran Campbell on the show to talk about whether there was an eviction tsunami on the horizon. And at that time, Fran told us that the the various moratoriums on evictions were working and so she she had not seen an eviction tsunami and did not see one on the horizon. Now that a lot of the COVID restrictions and moratoriums on evictions are being eased or removed. Do you see any changes to that? Are there going to be we're going to see more evictions on the horizon or due to falling? Market? falling and falling housing prices tend to offset that?
Eric Post 24:10
Yeah, I mean, we're already seeing a dramatic increase and and it's not just about nonpayment cases, it's about all sorts of of often very pretextual cases to be able to remove a tenant so landlord could raise the rent up to market and landlords are getting a lot of pressure in that regard. We're seeing a radical uptick over this past couple of years of illegal evictions and kind of illegal lockouts and kind of more belligerent actions by landlords to evict their tenants because they're desperate. But, you know, we're starting to see a big increase because of the expirations to the moratoriums and, you know, for a lot of a lot of families, you know, they were struggling to keep their housing before this crisis. And you know, this hasn't changed much and the legislation that was passed largely just kicked the can and down the road based on the premise that families were who were already struggling with somehow be able to pay back all the background. And you know, even though the state passed this rental assistance, it was never really about assistance for tenants. And it was always a program to ensure that unlike every single other business and investment that landlords do not experience any losses due to COVID. And that their their profits are just guaranteed. But you know, landlords have been resistant to the program, and the program has been riddled with unclear inconsistent and inaccessible processes, leaving many leading many tenants to have their assistance denied. But you know, I mean, what what we see a lot is, you know, the note, all too often, the courts in the legislature operate on the premise that a case that is about non payment of rent is actually about getting the money. But we unfortunately know, all too well, that that's not the case. If that was the case, then we would be settle most cases by a tenant just paying the money and being able to stay in their home. But the incentives are out of that. If you remove a family, you can raise the rent of the market to whatever you want. So if you have a long term tenant who is paying 800 bucks a month, and you can replace that with a new tenant who's going to pay $2,400 a month, you're going to use any tool in your possible to be able to evict that tenant, even pre tax even. And it's never about the money, or at least in terms of the outstanding rent that the case is based on. Right. So it sounds like what you're saying is it's really discouraging, and we're
Tim Kowal 26:37
more sorry, it's it sounds like what you're what you're talking about here are two different incentives or two different ends of the policy. If the legislature wants to help tenants by imposing rent control, for example, they also have to consider making sure that they don't get there while their rent is remaining the same. They're going to get a 60 day notice to quit stapled to their door.
Eric Post 27:00
Yeah, exactly. Exactly. And that's, that's one of the most important things. One of the biggest barriers for tenant advocates is the cost of Hawkins Act, which was an act li passed in the 90s to to limit the ability of local communities to adopt certain forms of rent control. And one of the aspects is was to restrict what's called vacancy or it was to provide a right to what's called vacancy decontrol, which is if you got a vacant unit, you could raise the market, whatever you want. There are many other states, including New York, for example, that do allow for local communities to have some restriction on what the new rent can be after you evict a tenant. And, you know, research has demonstrated that that has significantly reduced pretextual evictions because I mean, if a landlord wants the money, take the money. But all too often the money they're really chasing after is not the money that is owed to them by the tenant. It's about the the expectation of future rent receipts from a new replacement tenant. Hey, let's go.
Jeff Lewis 28:11
Let's switch gears for a second. We've been talking about landlord tenant work. Let's talk about homelessness for a second. Are you involved at all with pastas work for I guess I should say beyond housed? Yeah,
Eric Post 28:22
yeah. You know, so you know, I'm one of the only people in my organization who has done both work for tenants, and then also work who are a floater for those who are on housed. So I'm often involved with our whenever our work overlaps. But you know, one of the things that kind of come to remember when it comes to addressing homelessness is that, you know, we need to focus on both the outflows in the inflows, ie like, like both what helps folks living on the street get into stable housing, but also what helps prevent families from becoming homeless in the first place, we most of our work, or, you know, pretty much all of our work is focused on the latter, and primarily defending its tenants AGAINST EVICTION. So you know, a family that who gets evicted without a place to go, they're homeless. And, you know, if our, if our clients have a place to go, we can settle the case. And usually that's available, but if not, our work defending that family is to prevent another family from ending up on the streets. Now, you know, and there's a lot of research about how if you can put that it takes far less resources to prevent families into going into going into homelessness than it is to get families out of homelessness. And often, for many families, we're just talking about a couple months of rent. So it's, it's just, you know, somebody got sick and they're out or their hours were cut or something like that. And they may be able to get their head above water. And you know, so they just need a little bit of help and a little bit of time, and then there'll be able to maintain them housing, and So yeah, we, you know, we mostly focus on the inflows and in what pushes families into homelessness, and what can we do to stop families from even going into that step?
Jeff Lewis 30:09
We've been following this litigation that's been pending for some time before Judge David Carter against the city of LA regarding finding beds for the announced.
Eric Post 30:21
Absolutely. And, you know, I mean, it's been a little outside of my work and foster, you know, because we haven't really been directly involved with that matter. But, you know, I, through through my outside work mostly with the National Lawyers Guild, and, you know, I've been following the matter. And, you know, I'm in real strong support for the intervenors. In that case, the Los Angeles Community Action Network, as well as the downtown Women's Center. And, you know, it was it was a really problematic case from the big the gecko. And it was a, you know, business association, you know, kind of presenting itself as a grassroots organization, who wasn't really concerned about the experience stuff, people who are on housing was more concerned about being confronted with visible homelessness. And, you know, many of them that, you know, had the privilege of being able to ignore, and not have to see extreme poverty within their own communities. And, and, you know, now that the homeless crisis is just exacerbated, they just don't want to see it. So that's where a lot of the case even came from. It wasn't even wasn't something actually out of concern for unhoused. Folks, it was always about, you know, how do we make middle class and upper class and business interests not have to see the problem? It was never about any sort of kind of help.
Jeff Lewis 31:41
Let me ask you, let me push back a little bit on that, Eric, the fact that this lawsuit was filed, and teed up for Judge Carter to roll up sleeves and try to do something, wouldn't you say just the filing of the lawsuit itself? was a force for good in terms of trying to solve this problem or no?
Eric Post 31:57
Well, I think I think there's some truth to that. I think it certainly put some some some fire under the relevant agencies to get get their stuff together.
Jeff Lewis 32:06
Yeah, let me let me say, I monitored from afar this docket, okay. And I would see these docket interesting entries where you'd see judge Carter saying, hey, mayor, the city of LA come on down to my courtroom for a MSC next week. I've never seen anything like it.
Eric Post 32:23
Yeah. And I, you know, there's something there's something kind of cool about that. And, you know, I think of a lot of civil law, legal systems in which judges have a lot more of an investigatory role. And, you know, as a result, that produce often produces more long term results than, you know, just discrete litigation. And, you know, there were a lot of really good suggestions in his order. In the injunctive. Order, it was just, you know, and a lot of a lot of which I think were long overdue, I think, you know, some auditing and transparency and accountability for the ways funded funds that have been slated to address homelessness are being used as has been needed for a long time. And let me just say, it's just a benefit rating. Can to this core?
Jeff Lewis 33:09
Yeah, let me just say for the benefit of our audience who may not have read it, you know, a year or so ago that Judge Carter issued this far reaching injunction drawing lines between systemic racism and the current homeless problem in the city of LA and forcing the city of LA to spend serious money and resources to fix the problem. The Ninth Circuit ultimately reversed that injunction. So he went too far. And Tim had a write up about that, that we'll post in our in our show links, but I thought there were some great suggestions in that injunction. I don't know if the current settlement incorporated some of his aspects there. But I also know certain people have appealed the order approving that settlement. So the litigation is not even settled yet.
Eric Post 33:51
Yeah, yeah, it's a mess. And, you know, I mean, one of the things that is, is really a challenge for a lot of advocates is that many of whom have spent decades using research based practices and data to be able to identify some of the barriers and the sorts of systems that can actually address people's needs. And you know, so then, you know, Judge Carter comes in and he says, Okay, let's do something completely different. And let's shift resources from what you're doing in that regard to just kind of one size fit all solution of let's just put people in shelters. Well, anybody who's ever you know, worked with enhanced folks never been to shelters know that shelters rarely lead to stable housing, and often are horrible environments that that actually deter people from accessing services and impede ability, it often can impede the ability to get in a more stable financial situation. For example, if you gotta if you gotta wait outside of the shelter at 330 in the afternoon line around the block, you know, that's going to impede your ability to go to a job and Have you at four in the afternoon. And if you're not in that line, you don't have a place to stay tonight. Now, you know, theoretically, with the expansion of more shelters that that that would have been less of a barrier. But that's just one very common situation that people who have to rely on shelters experience when trying to deal with medical appointments, job interviews, and all sorts of other logistical concerns.
Tim Kowal 35:20
Well, and before we leave the issue of homelessness, why don't we just go ahead and have you solved the homelessness? Tell us No. I mean, what is it, you know, based on your career and working in these issues concerning tenants rights and and some homelessness issues? Do you have any, what is your opinion on what kind of the root cause is? Is it? Is it something like income disparity? Is it Al Gore's allocation of resources issue? Is it simply a insufficiency of available housing? What What's your take on it?
Eric Post 35:51
Well, you know, I mean, I, in you know, I guess my politics can really show here, you know, I mean, you know, homelessness is very much a natural result of a system that prioritizes profits and prioritize in rather than providing support. And, you know, I very much come from a perspective that that housing is a human right and should be respected as such, and it's an essential need, that should be something that we provide as a society. And, you know, but but one of the things that's always really upsetting about the discussion about ways to solve homelessness is, is as I mentioned before, is so much of the focus on the outflows rather than the inflows and the sort of inflows are, you know, lack of representation, eviction, lack of rent and tenant protections, as well as stagnating wages, a social safety net that is practically non existent and woefully insufficient. It's been a number of years doing social security work, and, you know, I would get a client social security assistance, and there was nowhere that they would ever be able to rent with, you know, with a, you know, a 900, something dollar, so, SSI payment. And so a lot of just the disparities there,
Tim Kowal 37:01
and about mental illness and substance abuse, that's got to account for a huge proportion of the homelessness at least.
Eric Post 37:08
Well, there's, there are two aspects of that. I mean, one is, is like I said, I mean, there's a social safety net, that is woefully insufficient. I mean, even to the folks who are lucky enough to get Social Security Disability, you know, the money is just woefully insufficient to actually address any actual needs. But you know, a lot of it too, I think there is a, you know, much of the data as to the presence of people with disabilities, particularly mental health disabilities, and people who struggle with addiction, a lot of a lot of the data actually shows that it's actually not as sizable but as a percentage as what we see when we see the so called visible homeless, you know, most homelessness exists in families sleeping in their cars, sleeping in garages, things like that, so called visible homelessness is that's the, that's the tents and stuff, those are the people who can't even handle those sort of other alternative living arrangements. And so that's what they're just more visible. At some level, you don't know that somebody's homeless, when they're walking down the street, you can suspect it when somebody is a hot mess because of the symptoms of their disability, or they're struggling with addiction. But you know, one of the other really upsetting parts of this discussion is that, you know, often there's so much of a focus on the development of new housing. And the thing is, is that, you know, City of LA, for example, as well as the county, you know, there is a massive amount of vacant city and county owned properties, as well as tax delinquent properties that could become city or county own. And, you know, there's a lot of this development of luxury condos and apartment buildings that are largely ghost towns where units sit vacant, because it's often like an investment tool, or it's, you know, somebody's like, third apartment that they go to when they you know, go to a Lakers game, you know, that sort of thing. A lot of places across the world have created disincentives for financial institutions and individuals to maintain vacant houses. And I think I think those sorts of solutions would be really helpful in reducing the disparity of we have so many vacant houses, homes, but we have so many people without homes, and until we connect the two, and we're never going to be able to address the problem. And one of the kind of premise of affordable housing policy, really since the 70s. If not before was the only way to provide affordable housing is to provide is to give whatever they can in tax breaks, tax benefits, financially, you know, preferential financing, all of that other stuff to try to make the provision of affordable housing profitable, but, you know, I mean, but But first of all, it's it's never going to be truly profitable. And it's never going to be profitable enough for a company He's who are guided by quarterly returns and profit growth. So it's an it's always going to be the you know, they always have to increase their amount of profits. And and so the affordable housing development just continues to get more and more expensive. And, you know, the governmental response is to throw money at these private entities to try to encourage them to provide affordable housing, but they just don't have an interest in doing so. So I think a lot of the solutions are a need to shift away from commodified housing, and from housing, market based housing, and start focusing on social housing to start caring about, you know, other forms of housing environments, that that aren't necessarily tied to a market that is not interested in providing for this essential need of housing. Yeah,
Jeff Lewis 40:45
interesting. Listen, we've covered a lot of material today, we've covered some information about your landlord tenant practice. And we you've solved the problem, the enhanced, are there any other pearls of wisdom that you've picked up as a tenant's rights attorney that you want to either share with our audience or something that non landlord attorneys might be surprised to learn about your practice that you want to share with our audience?
Eric Post 41:09
Ooh, you know, I think I think for a lot, I think a lot of people who don't practice and landlord tenant think that it's a such a unique area of law, that nothing that they know, from their other practice areas would ever come into play. But, you know, the the advantage of of unlawful detainer practice is that, you know, it's a summary proceeding, but it's it's basic civil procedure, just tighter deadlines, some restrictions in terms of certain motion and certain defenses. But you know, for a lot of attorneys, especially those who are interested in trial experience, doing landlord tenant work is a great way to get your feet wet, you can get a case done in a matter of months, rather than, you know, four and a half or five years. Yeah. So there's a lot of benefits to doing the work in and a lot of the the insights that you all know from your other practice areas are going to be helpful and are going to serve you well, in that practice. But I think I think, you know, the one thing I would like to say that is kind of the most biggest mistake is the kind of mistake that that we see with trial attorneys who want to do their own appeals. And, you know, yeah, exactly. I mean, there, you know, the specific case or quote, kind of escapes me right now. But, you know, there are all these cases that that engage in this great discussion about how recycling trial level briefs will doom your appeal. And, you know, I think I think appellate work requires much more thorough work and a keen sensitivity to how that particular issue is going to fall into the broader context of jurisprudence in that area. It's just not trial level work. And just like trial level, just like trial level work is not the same as doing administrative. And I think, I think for a lot of attorneys, they need to respect the difference and modify their work accordingly. I think trial attorneys, if they thought more about what do I need to do to preserve issues on appeal, and we're more careful about that sort of stuff, they would both be more successful at the appeal level, but also at the trial level. And I think, I think one of the, and then also, you know, just there's just a number of different tactics that are employed by by trial attorneys that just drives me nuts. And those are the things like like waving notice, when on dispositive motions, it's like, you know, waiving notice on a continuance totally understand that there's no need for somebody to have to send notice on that. On the other hand, like if, of course, deny the judgment on the pleadings or something like that don't waive notice, you're entitled to a ruling. And you know, and especially for certain dispositive motions, and other sorts of things. It's really essential in terms of determining the appeal period. But that's a really common mistake that I see of trial attorneys in a landlord tenant context, but even outside of the landlord tenant context, although less frequently.
Jeff Lewis 43:56
Well, that's that those are some great points. And Tim, and I will be sending a check that mail in the mail for that wonderful endorsement of the need for appellate minded advice when handling an appeal. I think, Tim, I think that wraps up this episode.
Tim Kowal 44:12
Yeah. And we want to thank thank Eric post, again for visiting with us on the podcast today. And we want to thank again our sponsor case text. Each week, we include links to cases we discuss in the podcast and we use case text as the as our case database listeners of the podcast can find a 25% discount available to them if they sign up at case text.com/calpe That's the casetext.com/caLP. If you have
Jeff Lewis 44:37
suggestions for future episodes, please email us at info at Calpine podcast.com in our upcoming episodes. Look for tips on how to lay the groundwork for an appeal when preparing for trial. And thank you again, Eric, for being here. And thank you to Frank Campbell for nagging me about having you here.
Eric Post 44:54
Thanks so much.
Tim Kowal 44:56
See you next time.
You have just listened to the California appeal on podcast, a discussion of timely trial tips and the latest cases in news coming from the California Court of Appeal, and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at email@example.com or (714) 641-1232.
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