Judge: John J. Kralik, Case: 23BBCCV03006, Date: 2024-02-09 Tentative Ruling

Case Number: 23BBCCV03006    Hearing Date: February 9, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.   Allegations

On December 19, 2023, Plaintiff AVB Studio City III-A, LP (“Plaintiff”) filed an unlawful detainer complaint against Defendant Svetlana Ausheva (“Defendant”).  The property at issue is located at 10945 Bluffside Drive #428, Studio City, CCA 91604.  Plaintiff is alleged to be the owner of the premises.  Plaintiff alleges that on August 16, 2020, it entered into a written agreement for an 11-month tenancy with Defendant.  Plaintiff alleges that Defendant was served with a 3-day notice to pay rent or quit on November 30, 2023 and the period for Defendant to comply expired on December 5, 2023.  Plaintiff seeks possession of the premises, costs incurred in this proceeding, past due rent of $26,484.38, reasonable attorney’s fees, forfeiture of the agreement, and damages at the rate of $111.20 per day from December 6, 2023.     

On January 25, 2024, the default of all unnamed occupant was entered. 

B.    Motion on Calendar

On January 4, 2024, Defendant filed a demurrer to the sole cause of action in the complaint. 

On January 30, 2024, Plaintiff filed an opposition brief.    

REQUEST FOR JUDICIAL NOTICE

         With the motion papers, Defendant requests judicial notice of: (A) the resolution of the Board of Supervisors of the County of Los Angeles further amending and restating the County of Los Angeles COVID-19 Tenant Protections Resolution, dated January 24, 2023; and (B) About Los Angeles County’s COVID-19 Protections Resolution – Los Angeles County Consumer and Business Affairs document.  The request is granted pursuant to Evidence Code, § 452(g)-(h). 

DISCUSSION

CCP § 1161 defines “unlawful detainer” in relevant part as follows:

2. When the tenant continues in possession, in person or by subtenant, without the permission of the landlord, or the successor in estate of the landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring its payment, stating the amount that 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 (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), 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 (provided that the institution is located within five miles of the rental property), 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 the tenant and if there is a subtenant in actual occupation of the premises, also upon the subtenant.

(CCP § 1161(2).)  More simply: “The standard elements of an unlawful detainer action for nonpayment of rent are (1) the tenant is in possession of the premises, (2) the tenant is in default for nonpayment of rent, (3) the tenant has been properly served with written notice to pay rent or quit of no less than three days, and (4) the tenant's default continues after the three-day notice period has elapsed.”  (Frazier v. Superior Court of Los Angeles County (2022) 86 Cal.App.5th Supp. 1.)

Defendant demurs to the sole cause of action for unlawful detainer, arguing that the complaint and its exhibits fail to state sufficient facts and are uncertain.  Defendant argues that pursuant to the LA County Tenant Protections Resolution Post-Protections Resolution and the extension of the resolution, Plaintiff was required to serve a 30-day notice on Defendant to seek back rent incurred prior to March 31, 2023 and to submit any notice service on a tenant to the Los Angeles Housing Department within 3 days of service on Defendant.[1]  Defendant argues that on November 30, 2023, Plaintiff only served a 3-day notice for non-payment of rent for periods beginning prior to March 31, 2023.  Defendant argues that the 3-day notice “reserves the right to seek back rent incurred prior to March 31, 2023 at a later date.”  (Dem. at p.2.) 

The complaint at Exhibit 2 includes the Notice to Pay Rent or Quit.  It seeks rent in the amount of $25,484.38 from the periods of April 1, 2023 to November 1, 2023.  Based on the Court’s review of the complaint and notice, there is no language that Plaintiff stated that it was reserving the right to seek back rent prior to March 31, 2023.  As such, based on Defendant’s arguments, a 30-day notice would not be required.

         In opposition, Plaintiff argues that a 30-day notice is only required if the landlord seeks to evict a tenant described in the Tenant Protections Resolution § VI.A.1.b—that is, the tenant must have availed themselves to the protections of the resolution and submitted the required notice to the landlord within a certain time frame.  At this time, the Court is not aware of allegations regarding whether Defendant complied with such requirements.  However, this may be a defense that Defendant can raise later at the motion for summary judgment or trial phase where the Court can consider evidence outside the pleadings.  (In the demurrer papers, Defendant states she submitted a self-certification to Defendant of the COVID-19 crisis regarding financial hardship during February and March 2023; however, such extrinsic arguments cannot be considered at this time.  [Dem. at p.7.]) 

         Thus, the demurrer to the complaint is overruled. 

CONCLUSION AND ORDER

        Defendant Svetlana Ausheva’s demurrer to the complaint is overruled.  Defendant is ordered to answer.