Judge: Loren G. Freestone, Case: 37-2023-00030991-CU-UD-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Unlawful Detainer - Residential Demurrer / Motion to Strike 37-2023-00030991-CU-UD-CTL BTI PROPERTY MANAGEMENT VS LAPORTA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Brian LaPorta's demurrer to Plaintiff BTI Property Management's complaint is SUSTAINED.

LaPorta demurs on two grounds: (1) the notice to pay rent or quit was defective, and (2) the complaint is uncertain. The first ground is dispositive, and therefore it is unnecessary to address the second.

'A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action. Because of the summary nature of an unlawful detainer action, a notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements.' (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697; accord Esa Mgmt. LLC v. Jacob (2021) 278 Cal.Rptr.3d 482, 484–485.) A three day notice to pay rent or quit 'must state one of the following: (1) The name, telephone number, and address of the person to whom the rent payment must be made; (2) The number of an account in a financial institution, located within 5 miles of the rental property, into which the rental payment may be made, and the name and street address of the institution; (3) If an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure.' (Foster v. Williams (2014) 229 Cal.App.4th Supp. 9, 16–17, emphasis in original; see Code Civ. Proc., § 1161(2).) The notice to quit must be attached to the unlawful detainer complaint. (Code Civ. Proc., § 1166, subd.

(d)(1)(A).) As such, the sufficiency of the notice is properly raised by way of a demurrer. (See County of San Bernardino v. Superior Court (2022) 77 Cal.App.5th 1100, 1107 ['Where written documents are the foundation of an action and are attached to the complaint and incorporated therein by reference, they become a part of the complaint and may be considered on demurrer'].) Here, the 'Three Day Notice To Pay Rent Or Quit' is attached to the complaint as Exhibit 1. The issue is whether that notice states one of the three alternatives set forth above.

The notice states that within three business days, LaPorta was 'required to make payment PAYABLE TO Shirina Safinia of the rent for the above Premises [16054 Falcon Crest Dr., San Diego, CA 92127] totaling the sum of $14,100.' The notice does not state Ms. Safinia's telephone number or address.

The notice is therefore not sufficient under the first alternative.

The notice also states that payment 'must be made electronically to Shirine Safinia at Bank of America,' and provides a routing number and account number. Even assuming there was a Bank of America Calendar No.: Event ID:  TENTATIVE RULINGS

3039821  37 CASE NUMBER: CASE TITLE:  BTI PROPERTY MANAGEMENT VS LAPORTA [IMAGED]  37-2023-00030991-CU-UD-CTL location within 5 miles of the property, the notice does not provide the street address of any such branch. Instead, it only provides a telephone number. The notice is therefore not sufficient under the second alternative.

The notice further states 'Acceptable methods of payment: Electronic Transfer.' However, the notice does not specifically refer to a 'previously established' procedure. The notice is therefore not sufficient under the third alternative. (See Foster, supra, 229 Cal.App.4th at p. Supp 17–18 [third alternative 'cannot be satisfied without stating that payment is to be made pursuant to the parties' previously established procedure for electronic payment . . . expressly referring to the previously established procedure ensures that the tenant receives the necessary instruction on how to pay rent'].) The three day notice did not comply with any of the three alternatives under Code of Civil Procedure section 1161(2). As such, the unlawful detainer cannot proceed and the demurrer is sustained without leave to amend.

LaPorta is directed to submit a proposed judgment of dismissal within five days.

This ruling is without prejudice to BTI serving 'another notice which fully compli[es] with Code of Civil Procedure section 1161(2) and pursu[ing] another unlawful detainer action if rent remain[s] unpaid.' (Esa, supra, 278 Cal.Rptr.3d at p. 485.) Calendar No.: Event ID:  TENTATIVE RULINGS

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