Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This is an unlawful detainer action.  Plaintiff GE Rose LLC (“Landlord”) entered into a written lease agreement (“Lease”) with Defendants Ivelina Gancheva and Danail Todorov (“Tenants”) for property located at 10883 Rose Avenue Apt 105, Los Angeles, California (the “Premises”).    Tenants failed to pay rent due under the Lease. 

A three-day notice to pay rent or quit (the “Notice”) was served on Tenants.  Tenants failed to pay the demanded rent or quit the Premises within the statutory period.  As a result on July 21, 2023, Landlord filed an unlawful detainer complaint against Tenants.  A copy of the proof of service showing notice was served by posting and mailing was attached as an exhibit to the Complaint. 

This hearing is on Tenants’ demurrer.  There are two grounds for the demurrer: (1) pursuant to Code Civ. Proc. § 1162, the Notice was required to be served by personal service and substituted service is not authorized unless attempts at personal service are first made, and (2) the Notice should have been preceded by a notice to perform covenants to be cured as required under Cal. Civ. Code § 1946.2. 

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law.  (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

Tenants argue that the Notice had to be served by personal service first and § 1162 only authorizes substitute service if personal service was attempted but unsuccessful or if the person’s location is unknown.  The Court disagrees. 

A landlord may not file an unlawful detainer action based on failure to pay rent unless he has first served the tenant with a three-day written notice to pay rent or quit. (Code Civ. Proc. § 1161, subd. 2;¿Bevill v. Zoura¿(1994) 27 Cal. App. 4th 694, 697.)   

Section 1162 provides three methods of serving the notice: (1) by personal delivery to the tenant (personal service); or¿(2) if the tenant is¿absent from his residence and usual place of business, by leaving a copy with a person of suitable age and discretion at either place, and sending a copy through the mail to the tenant’s residence (substituted service); or (3) if a place of residence and usual place of business cannot be ascertained or a person of suitable age or discretion cannot be found there, then by affixing a copy in a conspicuous place on the property and delivering a copy to a person residing there, if such a person can be found, and also sending a copy through the mail addressed to the tenant at the place where the property is situated (post and mail service).¿(Code Civ. Proc. § 1162, subds. 1-3;¿Civ. Code § 1946.)¿ A 3-day notice is valid and enforceable only if the lessor has strictly complied with these statutorily mandated requirements for service. (Liebovich v. Shahrokhkhany¿(1997) 56 Cal. App. 4th 511, 513 [65 Cal. Rptr. 2d 457].) 

The complaint alleges that service of the notice was effectuated by posting and mailing.  The proof of service was attached as Exhibit 3 to the Complaint.  It states that service was effected by “BY POSTING a copy for each of the above-named resident(s) in a conspicuous place on the property therein described, there being no person of suitable age or discretion to be found at any known place of residence or business of said resident(s); AND MAILING by first class mail on the same day as posted, a copy to each resident by depositing said copies in the United States Mail, in a sealed envelope with postage fully prepaid, addressed to the resident(s) at the place where the property is situated.”  For purposes of a demurrer, this must be accepted as true, and accordingly, Tenants’ first ground for a demurrer is without merit.   

 Tenants then argue that the Notice should have been preceded by a notice to perform covenants to be cured, as required under Civ. Code § 1946.2, the Tenant Protection Act.  But Civ. Code §1946.2(c) requires a notice to cure before serving a tenant with a notice to quit only for notices concerning violations that fall under Code Civ. Proc. §1161(3), and the Notice here was brought pursuant to Code Civ. Proc. §1161(2).  (See Compl. at 6(f)(2).) 

Section 1946.2(c) states: “Before an owner of a residential real property issues a notice to terminate a tenancy for just cause that is a curable lease violation, the owner shall first give notice of the violation to the tenant with an opportunity to cure the violation pursuant to paragraph (3) of Section 1161 of the Code of Civil Procedure.  If the violation is not cured within the time period set forth in the notice, a three-day notice to quit without an opportunity to cure may thereafter be served to terminate the tenancy.”  (Emphasis added.)  By its terms,  §1946.2(c) requires a notice to cure only for violations pursuant to §1161(3), not for actions for failure to pay rent under §1161(2).  Accordingly, Tenants’ second ground for demurrer also fails. 

CONCLUSION 

For the foregoing reasons, the Court OVERRULES Defendants’ demurrer.   

 

DATED:  February 1, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court