Here’s a case summary I recently wrote for California Landlord-Tenant Practice (CEB):
In Ramirez v. Wong (2010) 188 CA4th 1480, 116 CR3d 412, a male resident manager entered an apartment occupied by two female tenants while they were out, opened their dresser drawer, and sniffed their underwear. The court held that this did not violate Civil Code §51.7, because this involved no threat of violence. Nor was it sexual harassment under Civil Code §51.9, as it involved no interaction between the manager and the tenants, i.e., the tenants were unaware of the conduct while it was happening.
MM: But what about Civil Code §1954(a), which allows the landlord to enter the tenant’s premises only for certain specified purposes – not including underwear-sniffing? Did the tenant’s lawyer drop the ball by not alleging §1954(a) as a basis for liability?
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How in God’s name, you might ask, could the tenants have known their panties were “sniffed” in their absence?
Legal theories aside, I immediately suspected proof problems.
Maybe they set up a panty-cam?
Amazingly, yes they did!
See 188 Cal.App.4th p. 1484, fn. 2:
“….plaintiffs discovered Valdez’s conduct later on the day it occurred, when they examined the contents of a recorded video surveillance system they had installed. The video showed Valdez’s conduct as described in the complaint…”
Now that’s weird.
Or what about invasion of privacy (intrusion)?
What about invasion of privacy, trespass, and conversion (assuming he also soiled the underwear with dirty fingers, sneezing, etc.)? He may have also breached the implied convenant of quiet enjoyment of the tenancy.
That the tenants were able to determine this incident occurred is a violation of the federal Fair Housing Act at 42 U.S.C. 3617, constituting intimidation, interference, or coercion as to housing rights relating to their gender; it also is a violation of the FH Act at 42 U.S.C. 3604(b) constituting disparate termsa dn conditions of tenancy reltated to gender. What is unfortunate is that these tenants may have split their cause of action by not alleging these claims and obtaining judgment.
Hi Professor,
Interesting case (Ramirez v Wong). I don’t have access to read the case, but it seems pretty clear the landlord violated 1954(a). However, I wonder what the damages would have been for such a violation. I assume the damages would have been much higher under the other statutes. Although I agree that the landlord’s conduct is not sexual harassment, I’m not quite sure that it does not fall under 51.7 because there was no threat of violence. I know most women would be intimidated by such an intrusive act and feel physically unsafe in their rentals after such an experience. Again, I don’t know the exact reasoning of the court, but from your summary it appears they struck this argument down simply because they decided the landlord’s actions were not a threat of violence. I definitely disagree. Breaking into someone’s home and sniffing their underwear sends a very threatening message that this person will invade your private space and do what they like against your will. It’s about power and the message is violent: “If I can break into your house and smell your underwear, I can break into your house and rape you.” If the court’s only reasoning was the landlord’s actions were not physically threatening, then I’m blown away. He basically stalked these women, violated their private space in a sexually threatening manner, and probably scarred them for life.
I think the problem with §1954 is that a “one off” violation will generate only $2,000 in statutory penalties, because abuse of §1954 is considered a violation of §1940.2. The violation should be alleged but I would hope the tenants’ attorney included a few more garden variety claims, like invasion of privacy.
Also, while the conduct might not have been sexual harassment, I wonder if a claim for stalking could have been tenable (CC§1708.7). I expect the defendant would have vigorously opposed any claim that the conduct was harassment or conduct intended to “alarm”, however. Too bad there is not a clear claim predicated on the “ick” factor alone.
In any case, I guess the court didn’t think the tenant’s lawyer’s argument passed the sniff test.