Judge Bruce G. Iwasaki, Case Number: 24STCV25166, Date: 2024-12-03 Tentative Ruling

Tentative Ruling: Defendant’s Motion for Summary Judgment is denied.

This is an unlawful detainer action. The Complaint alleges that, at the time the three-day notice was served, Defendants Elad Kehati and Michal Ben-Shoshan owed $39,631.86 to landlords, Plaintiffs Alete Tsfira and Zohar Tsfira as Co-Trustees of the Alete Tsfira & Zohar Tsfira Revocable Trust, in rental payments arising from Defendants’ tenancy at 1719 Stearns Dr., Los Angeles, CA 90035 (Property). Defendants have not paid these amounts or returned possession of the Property.

On November 7, 2024, Defendant Michal Ben-Shoshan (Defendant) moved for summary judgment. Plaintiffs filed an opposition.[1]

Plaintiff’s objections are ruled as follows: Nos. 1-13 are overruled on the grounds that Plaintiff’s objections to Defendant’s motion are not objections to evidence; No. 14 is overruled, and Nos. 15-20 are sustained,

“The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc. § 437c, subd. (c).)

Defendant moves for summary judgment on the grounds that Plaintiffs’ Three Day Notice to Pay Rent or Quit (Three Day Notice or Notice) is defective pursuant to Code of Civil Procedure section 1161 because it demands more than 12 months of rent.

Under Code of Civil Procedure section 1161, a tenant is guilty of unlawful detainer when he or she remains in possession of the premises, without the permission of the landlord, after defaulting in the payment of rent under the rental agreement, and fails to pay the rent due after being served with a written three-day notice stating such amount and the place at which payment is to be made. (Code Civ. Proc., § 1161, subd. (2).)

An unlawful detainer action is not based upon contract but rather “ ‘is a statutory proceeding ... governed solely by the provisions of the statute creating it.’ [Citations.] As special proceedings are created and authorized by statute, the jurisdiction over any special proceeding is limited by the terms and conditions of the statute under which it was authorized [citation], and a lessor's action to recover possession of real property is not one for unlawful detainer where he does not comply with the statutory ... requirements [citation]. The statutory procedure must be strictly followed. [Citations.]” (Kwok v. Bergren (1982) 130 Cal.App.3d 596, 599–600.)

One of the statutory requirements for an unlawful detainer is the service of a three-day notice stating the amount of past-due rent. (Code Civ. Proc., § 1161, subd. (2).) The amount of rent must be stated accurately. “A notice that seeks rent in excess of the amount due is invalid and will not support an unlawful detainer action. [Citation.]” (Levitz Furniture v. Wingtip Communications (2001) 86 Cal.App.4th 1035, 1038.)

Here, as noted above, the Complaint alleges that Defendant is guilty of unlawful detainer because she failed to comply with a Three Day Notice served on September 6, 2024. (Compl, ¶ 10, Ex. 3.) At issue here is Plaintiff’s Notice demanding $24,092.32 in rent, “representing the rent due for the period October 1, 2021 through January 31, 2023.” (Def.’s Ex. A.) On its face, Plaintiffs are seeking more than 12 months of rent for rent that accrued as early as October 1, 2021.

Defendant argues that Three Day Notice claiming past due rent in past-due rent is an overstatement of Defendant's rental obligation. Since the Three Day Notice, which was the basis for this unlawful detainer action failed to comply with the strict statutory requirements, it is invalid and cannot support the action. (Levitz Furniture v. Wingtip Communications, supra, 86 Cal.App.4th at p. 1038.)

In opposition, Plaintiff argues that their Three Day Notice was not defective because, under COVID- Eviction Mortarium statute set forth in Code of Civil Procedure section 1179.05, subdivision (c) and the Los Angeles Municipal Code (LAMC), the rent in the Notice did not come “due” more than 12 months from service of the Three Day Notice.

“The one-year limitation provided in subdivision (2) of Section 1161 is tolled during any time period that a landlord is or was prohibited by any ordinance, resolution, regulation, or administrative action adopted by a city, county, or city and county in response to the COVID-19 pandemic to protect tenants from eviction based on nonpayment of rental payments from serving a notice that demands payment of COVID-19 rental debt pursuant to subdivision (e) of Section 798.56 of the Civil Code or paragraph (2) of Section 1161.”

Also, relevant to the case here, Los Angeles added LAMC article 14.6, sections 49.99 et seq. to the municipal code in March 2020 “to temporarily prohibit certain residential and commercial evictions due to the COVID-19 pandemic.” (Los Angeles Ordinance No. 186585.)

The city amended the article in full in May 2020. (See Los Angeles Ordinance No. 186606.) In January 2023, the city further amended LAMC article 14.6. (Los Angeles Ordinance No. 187736.) As relevant here, the amendments set January 31, 2023 as the end date for the tenant protections under LAMC section 49.99.2, subdivision (A). (Los Angeles Ordinance No. 187736, § 2.)

“Until January 31, 2023, no Owner shall endeavor to evict or evict a residential tenant for non-payment of rent if the tenant is unable to pay rent due to circumstances related to the COVID-19 pandemic. These circumstances include loss of income due to a COVID-19 related workplace closure, child care expenditures due to school closures, health-care expenses related to being ill with COVID-19 or caring for a member of the tenant’s household or family who is ill with COVID-19, or reasonable expenditures that stem from government-ordered emergency measures.

Rental arrears accumulated between March 1, 2020, and September 30, 2021, under this subsection must be paid by August 1, 2023. Rental arrears accumulated between October 1, 2021, and January 31, 2023, under this subsection must be paid by February 1, 2024. Unless the COVID-19 Tenant Relief Act, Code of Civil Procedure Section 1179.01, et seq., applies, an Owner may bring an action to recover possession of residential rental property following the tenant’s default in the payment of rent according to these timeframes.” (Emphasis added.)

The article defines “endeavor to evict” as “conduct where the Owner [e.g., landlord] lacks a good faith basis to believe that the tenant does not enjoy the benefits of this article and the Owner serves or provides in any way to the tenant: a notice to pay or quit, a notice to perform covenant or quit, a notice of termination, or any other eviction notice.” (LAMC, § 49.99.1, subd. (B).) “Local Emergency Period” is defined as “the period of time from March 4, 2020, to the end of the local emergency as declared by the Mayor.” (LAMC, § 49.99.1, subd. (C).)

Based on the foregoing, Plaintiffs argue that, per LAMC section 49.99.2(A), the rental arrears from “October 1, 2021, and January 31, 2023” did not “come due” until February 1, 2024. Here, the Three Day Notice was served on September 6, 2024 – within twelve months of the amounts “coming due.”

Said another way, collectively, Code of Civil Procedure section 1179.05 and LAMC 49.99.2 allows a landlord to collect more than 12 months of rent. Defendant’s suggestion otherwise would effectively give Landlords the right to rents from this period but prohibit its collection. It would be nonsensical for the law to effectively impose a forfeiture of back rent by removing the means to collect rightfully owed rent during the period of the moratorium.

Lastly, Defendant also moves for summary judgment on the grounds that a rent ledger submitted to the Los Angeles Housing Department (LAHD) lists a different total than the one in Plaintiffs’ Complaint. As a preliminary matter, the Court sustained the objection to this “rent ledger” evidence. More importantly, with respect to this argument, Defendant does not provide any legal authority indicating that this renders Plaintiffs’ unlawful detainer action statutorily defective.

Based on the foregoing, Defendant has not shifted her burden on this motion for summary judgment.

[1] The reply argues that Plaintiffs’ opposition was not properly served on Defendant because Plaintiffs did not comply with Code of Civil Procedure section 1010.6. Defendant requests that the Court, therefore, disregard the Opposition. Plaintiffs’ electronic Service appears to be defective. (Code Civ. Proc., § 1010.6, subd. (c).) However, as Plaintiff could serve the opposition at the time of the hearing, there appears to be no prejudice to Defendant on the improper service. (Rules of Court, Rule 3.1351, subd. (b).)