Judge: Deirdre Hill, Case: 23TRCV00285, Date: 2023-04-20 Tentative Ruling

Case Number: 23TRCV00285    Hearing Date: April 20, 2023    Dept: M

Hearing Date:                         April 20, 2023

Moving Parties:                      Defendants Rory Kuhn and Je’Nai Kuhn

Responding Party:                  None

Motion for Judgment on the Pleadings

            The court considered the motion papers.  There is no opposition.

RULING

            The motion is GRANTED.

BACKGROUND

On February 1, 2023, plaintiffs Theodore Halkias and Jill Halkias filed an unlawful detainer complaint against Rory Kuhn and Je’Nai Kuhn based on a three-day notice to pay rent or quit for the property at 1605 Magnolia Avenue, Manhattan Beach, CA.

On February 9, 2023, the court granted plaintiff’s application for order to post.

On February 27, 2023, defendants filed an answer.

LEGAL AUTHORITY

CCP § 438 states, in relevant part:  “(b)(1) A party may move for judgment on the pleadings. . . . (c)(1)  The motion provided for in this section may only be made on one of the following grounds:  (A) If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or cause of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.  (B) If the moving party is a defendant, that either of the following conditions exist:  . . . . (ii) The complaint does not states facts sufficient to constitute a cause of action against that defendant. . . . (d) The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. . . .”  

DISCUSSION

            Defendants request judgment on the pleadings on the ground that the UD complaint fails to state facts sufficient to constitute a cause of action against defendant because the three-day notice upon which the complaint is based is defective.

CCP §1161(2) states:  “When he or she continues is possession . . . without the permission of his or her landlord . . . after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days’ notice, in writing, requiring its payment, stating the amount which is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment . . . or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution . . . or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure, or possession of the property, shall have been served upon him or her and if there is a subtenant in actual occupation of the premises, also upon the subtenant.”

Defendants point out that the three-day notice states that “[r]ent shall be delivered to:  Halkias account at Wells Fargo -Bank details previously provided.”  Defendants argue that the notice is defective because it failed to include a bank account number or address of a Wells Fargo financial institution that is located within five miles of the subject rental property.

There is no opposition.

It appears to the court that the notice is defective on its face because it directs defendants to “deliver” the payment to plaintiff’s account at Wells Fargo but fails to provide the number of an account and the street address of the institution within five miles of the property address.  The court notes that the instruction to deliver to Wells Fargo “details previously provided” could fall under “if an electronic funds transfer procedure has been previously established” but it is not clear.  Thus, the court finds that plaintiff did not strictly comply with CCP §1161(2).  See Lamey v. Masciotra (1969) 273 Cal. App. 2d 709, 713 (“Under California statutory law a tenant is entitled to a three-day notice to pay rent or quit which may be enforced by summary legal proceedings (CCP § 1161) but this notice is valid and enforceable only if the lessor strictly complies with the specifically described notice conditions.  (CCP § 1162).”).   

The motion is thus GRANTED.

Defendants are ordered to give notice of ruling.

            In reply, defendant cites to Stoops v. Abbassi (2002) 100 Cal. App. 4^th 644, 650, which states “’[a] motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.’” (Citation omitted). 

The motion is thus GRANTED.

            Defendant is ordered to give notice of the ruling.