Judge: Elaine W. Mandel, Case: 24SMCV01224, Date: 2024-06-27 Tentative Ruling

Case Number: 24SMCV01224    Hearing Date: June 27, 2024    Dept: P

Tentative Ruling

MMBA Ventura, LLC v. Sypien, Case No. 24SMCV01224

Hearing Date June 27, 2024

Defendant Sypien’s Demurrer to the First Amended Complaint (UNOPPOSED)

Plaintiff MMBA Ventura filed a form complaint for unlawful detainer on March 15, 2024 seeking possession and past due rent. After demurrer, plaintiff filed an amended form complaint.

Per the FAC, defendant entered into a written agreement with plaintiff’s agent to rent the premises and also work as an employee, entitling him a rent credit. A copy of the lease is not attached. Code Civ. Proc. §1161(2). The FAC alleged defendant was substitute served a three-day notice on February 20, 2024 to Vivian (Doe). Defendant demurs to the FAC. No opposition is filed.

Demurrer

Under Code of Civil Procedure section 1170, the defendants to an action for possession of real property may demur to the complaint. A defendant may demur on several grounds, including the ground that the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. §430.10(e).

Standing

Defendant argues plaintiff does not have standing to sue, but FAC, para. 4 alleges plaintiff is owner of the premises.

Defendant attaches deeds as exhibits to show the property is owned by other entities, not MMBA Ventures. However, the court must accept as true all well-pleaded factual allegations of the complaint. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. This is a factual question, not suitable for resolution on demurrer.

Sufficiency of Three-Day Notice

A three-day notice must state “the amount that is due, the name, telephone number, and address of the person to whom the rent payment shall be made,” and the methods by which the tenants may pay the landlord. Code Civ. Proc. §1161(2). “Due to the summary nature of such an action, a three-day notice is valid only if the landlord strictly complies with the provisions of section 1161, subdivision 2 …” Levitz Furniture Co. v. Wingtip Comms. (2001) 86 Cal.App.4th 1035, 1038.

A three-day notice is invalid if it seeks rent in excess of the amount due. Id. This is to ensure a tenant is “given the proper opportunity to cure and prevent an unlawful detainer action.” Bevill v. Zoura (1994) 27 Cal.App.4th 694, 698. “[F]airness requires that the landlord demand the precise sum due, so that the tenant will know what he must do to avoid the forfeiture.” Budaef v. Huber (1961) 194 Cal.App.2d 12, 18.

Defendant argues the three-day notice overstates the amount of rent due. The notice stated defendant owed $3,425 per month from March 1, 2023 through February 29, 2024. FAC Exh. 2. Paragraph 6(d) of the FAC alleges the rent agreement was changed when defendant’s employment with plaintiff’s agent terminated in February 2023. “Pursuant to the terms of the employment agreement, rent was increased to $3,425 pursuant to Santa Monica Rent Charter Amendment Section 7001.” FAC ¶6(d).

Defendant argues plaintiff served the three-day notice “without first having served [defendant] with a notice raising his rent.” Demurrer, p. 6. If plaintiff did not serve a notice of rent increase per Civil Code sec. 827, which requires notices of rent increase be delivered personally or by mail, the increase was unlawful and the three-day notice demands an amount in excess of the lawful rent. Plaintiff failed to oppose. Sustained with leave

Sham Pleading

Defendant argues plaintiff’s allegation as to the rent at the beginning of the rental agreement in the FAC contradicts plaintiff’s alleged rent amount in the original complaint. The allegations are contradictory. See Complaint ¶6(a)(2), cf FAC ¶(6)(a)(2). As to the monthly rent beginning on or about July 1, 2020, the original complaint states $660, and the FAC states $1,490. Complaint ¶6(a)(2); FAC ¶(6)(a)(2). The court acknowledges plaintiff’s attempt to cross-out and omit the rental amount in the original agreement from the FAC, without an explanation as to why the amount was changed. Defendant demonstrated the existence of a sham pleading, as the change in the rental amount can be considered a harmful fact in one pleading that was avoided in a subsequent pleading without adequate explanation. Relevant facts which make a pleading defective cannot simply be omitted, particularly when the original pleading is verified. Webb, supra, 23 Cal.App.5th at 256.

Plaintiff must explain the reason for the change in the rental amount.

SUSTAINED WITH LEAVE TO AMEND.  

Ownership??

Pos on demurrer??