Judge: Alison Mackenzie, Case: 24STCV24515, Date: 2025-02-13 Tentative Ruling

Case Number: 24STCV24515    Hearing Date: February 13, 2025    Dept: 55

NATURE OF PROCEEDINGS: Hearing on Defendant's Motion to Set Aside and Vacate

Defendant's Motion to Set Aside and Vacate is granted.

BACKGROUND

Plaintiff Shahram Pascal Abrar filed this unlawful detainer action against Defendant Tayfun Paul Kadioglu. On October 23, 2024, Defendant filed an Answer.

On November 6, 2024, the clerk mailed the notice of the trial date, set for November 27, 2024. Defendant failed to appear at the trial. After Plaintiff presented his case in chief, the Court continued the trial on its own motion to December 17, 2024. On Plaintiff’s motion, the Court further continued the trial to December 19, 2024.

On December 19, 2024, the Court entered Judgment for Plaintiff.

On January 10, 2025, Defendant filed a Motion to Set Aside and Vacate. Plaintiff filed an Opposition.

LEGAL STANDARD

Code of Civil Procedure section 473, subdivision (d) provides in relevant part that a court “may … on motion of either party after notice to the other party, set aside any void judgment or order.” “A judgment is ‘void’ only when the court entering that judgment ‘lack[ed] jurisdiction in a fundamental sense’ due to the ‘entire absence of power to hear or determine the case’ resulting from the ‘absence of authority over the subject matter or the parties.’” People v. The North River Ins. Co. (2020) 48 Cal.App.5th 226, 233 (quoting People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660) (citations omitted) (internal quotation marks omitted).

EVIDENTIARY OBJECTIONS

Plaintiff’s evidentiary objections 1-11 are overruled.

ANALYSIS

The defendant argues that the judgment is void because the underlying notice was improper.

Strict compliance with the statutory notice requirements is a prerequisite to filing an unlawful detainer action. “Under California statutory law a tenant is entitled to a 3-day notice to pay rent or quit which may be enforced by summary legal proceedings (Code Civ. Proc., § 1161) but this notice is valid and enforceable only if the lessor strictly complies with the specifically described notice conditions.” ) DHI Cherry Glen Associates, L.P. v. Gutierrez (2019) 46 Cal.App.5th Supp. 1, 8-9. A defendant’s failure to raise the defective notice as a defense is irrelevant because “[a] residential tenant cannot waive the notice provisions. ESA Management, LLC v. Jacob (2021) 63 Cal.App.5th Supp. 1, 5 (citation omitted).

Los Angeles Municipal Code section 165.03 provides in relevant part, “A landlord shall not terminate a tenancy unless it is based upon one or more of the following grounds… A. The tenant has defaulted in the payment of rent…. E. The tenant had a written lease that terminated on or after the effective date of this Article, and after a written request or demand from the landlord, the tenant has refused to execute a written extension or renewal of the lease for an additional term of similar duration with similar provisions, provided that those terms do not violate this Article or any other provision of law.”

Here, the parties had a lease providing for a fixed term, which expired on May 31, 2024, at 5:00 PM. Opp., Ex 1 at p. 16. However, the expiration of the fixed term alone does not operate to terminate the tenancy. Instead, the landlord may only terminate the tenancy based on the tenant’s failure to agree to another lease of similar duration and similar terms. LAMC § 165.03 (E). Therefore, by operation of law, the tenancy became a month-to-month tenancy after the lease term expired.

Defendant argues that the notice is deficient in the following ways:

1. The Notice is not stated in the alternative and does not provide an opportunity to cure.

2. The Notice is overstated as it demands amounts other than rent, such as premature holdover damages.

3. The Notice fails to unambiguously state when the payment is due, as it demands payment 30 days after receipt rather than service of the Notice

4. The notice is uncertain as to whether paying the rent will prevent termination of the tenancy after 30 days pursuant to Civil Code §1946.

Reply at pp. 1-2: 25-7.

A. Notice Stated in the Alternative

First, Plaintiff contends the notice is deficient because it is not stated in the alternative.

“It is well settled that the notice required under [Code of Civil Procedure section 1161,] subdivisions 2 and 3 (where the condition or covenant assertedly violated is capable of being performed) must be framed in the alternative, viz., pay the rent or quit, perform the covenant or quit, and a notice which merely directs the tenant to quit is insufficient to render such tenant guilty of unlawful detainer upon his continued possession.” Hinman v. Wagnon (1959) 172 Cal.App.2d 24, 27.

Defendant argues that the notice is not stated in the alternative and fails to provide an opportunity to cure. The Court disagrees. The notice states, “If this amount is not paid by the 30^th day following the date of this notice, you are required to deliver possession of the premises to landlord.” Complaint, Ex. 3. It further states, “If the past due rent is not paid, landlord will commence any necessary unlawful detainer and other legal actions to recover possession of the premises and all monies due to landlord.” Ibid. Nowhere in the notice does Plaintiff demand both payment of rent and possession of the property. Rather, the notice makes clear that if Defendant fails to pay, he will have to forfeit the property. Plaintiff correctly points out that the notice is titled “Notice of Delinquency” rather than “Notice to Quit or Pay Rent,” but offers no authority for the proposition that the notice must be so captioned.

B. The Amount of Rent is Overstated

Second, Defendant argues that the notice overstates the amount of rent due because it seeks to recover for both past rent owed and the rental value after the lease term expired. However, as explained above, the expiration of the lease term does not amount to a termination of the lease. Under Los Angeles Municipal Code section 165.03 (E), the landlord must first comply with applicable notice requirements after the tenant rejects a lease of similar duration and provisions.

Here, Plaintiff’s notice provided “there is due and delinquent as of August 20, 2024 an amount for unpaid rent and the reasonable value of the use of the premises for such time as tenant has occupied and continues to occupy the premises (collectively "rent") in the amount of $176,500. Opp., Ex. 3. The requested $176,500 reflects $10,000 in outstanding rent for November 2023 and $18,500 for each of the following 9 months, December 2023 through August 2024, inclusive. Because the tenancy never expired, Plaintiff properly listed the correct amount of rent. While Plaintiff mistakenly characterized some of the accrued rent as damages for lost rent, he correctly stated the amount of rent owed. Because the notice lists the correct amount of rent due at the time of notice, it complies with that requirement of Code of Civil Procedure section 1161, subdivision (2).

C. When Payment is Due

Next, Defendant argues that the notice fails to properly state when payment is due. The notice provides both that Defendant must pay the amount due “within 30 days from tenant’s receipt of this notice….[and] If this amount is not paid by the 30^th day following the date of this notice, you are required to deliver possession of the premises to landlord.” Defendant argues that this is ambiguous because the date of receipt differs from the date of the notice, dated August 30, 2024. Under the later deadline, payment was due on September 19, 2024. However, the proof of service shows that the service occurred on August 31, 2024. Therefore, under the second deadline description, service was due in 29 days, not the 30 days required by California Civil Code 1946. Plaintiff attempts to argue that Defendant needed to pay the amount due within 30 days of receipt, as measured from the date of service. Opp. at p. 12:18-21. However, Plaintiff fails to acknowledge that the date of service and the date of notice are different and that the notice uses both as a reference for the deadline. Because Defendant could not be sure that payment of rent on September 20, 2024, would cure the defect and allow him to remain in possession, the notice is fatally defective. Accordingly, the judgment is void.

D. Civil Code §1946

Finally, Defendant argues that the notice is defective because it provides that it is issued subject to Civil Code section 1946, which he contends is inappropriate for a property subject to the Just Cause Ordinance.

Civil Code section 1946 provides for the termination of month-to-month tenancies by giving at least 30 days written notice. Los Angeles Municipal Code section 165.05 (B) states, “The written notice shall be as described in Civil Code Section 1946 or Code of Civil Procedure Sections 1161….”

Defendant argues that because the ordinance is written in the disjunctive, Plaintiff’s notice constitutes an improper “hybrid” notice. Reply at p. 4:2. While Defendant is correct that the ordinance only requires the notice to comply with Civil Code section 1946 or Code of Civil Procedure section 1161, he fails to explain why those requirements are mutually exclusive. If a notice meets the requirements of both statutes, it complies with Los Angeles Municipal Code section 165.05.

Defendant further argues the reference to Civil Code section 1946 adds additional ambiguity because it makes it unclear if payment of rent will prevent termination of the tenancy after 30 days. Because the notice and complaint were brought under Code of Civil Procedure section 1161, the notice must be stated in the alternative. The reference to 1946, which does not permit a tenant to cure, constitutes a fatal notice defect. For that additional reason, the judgment is void.

CONCLUSION

Defendant's Motion is granted. The Court orders the judgment set aside and vacated.