Judge: Margaret L. Oldendorf, Case: 23AHCV01410, Date: 2023-11-15 Tentative Ruling

Case Number: 23AHCV01410    Hearing Date: November 15, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This is an unlawful detainer action. Plaintiff 1819 Wilson Avenue, LLC, alleges that tenants Carlos and Sheri Bermejo (collectively Defendants) failed to pay “rent” due under the lease.

          Defendants filed a demurrer to the complaint on July 20, 2023. The hearing on the demurrer, originally scheduled for August 31, 2023, was continued to November 15, 2023 by stipulation of the parties. On November 1, 2023, Plaintiff 1819 Wilson Avenue LLC (Plaintiff) filed an opposition to the demurrer.

          Defendants urge that the complaint fails to state facts sufficient to state a cause of action.  After considering all of the briefs, the Court is persuaded that the demurrer should be sustained, without leave to amend.

          II. DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE

          Defendants request judicial notice of the opinion in MBLA Properties v. Ravanales, LASC Appellate Division Case No. 033833, dated February 22, 2023, under Evid. Code Section 452.

          In its opposition, plaintiff objects to the request for judicial notice, as reliance on an unpublished case is not permitted under California Rules of Court 8.1115. (CRC 8.1115(a), see FirstMerit Bank, N.A. v. Reese (2015) 242 Cal. App. 4th 408, 413 fn. 2.) Although the Court may consider an unpublished opinion for the persuasive value of its reasoning, the request for judicial notice is denied in this case.

III.     LEGAL STANDARD

Code Civ. Proc. Section 430.10(e) provides for a demurrer on the ground that a complaint fails to state a cause of action. (CCP § 430.10(e).)

          “A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action.” (CCP § 1161, subd. 2; Cal–American Income Property Fund IV v. Ho (1984) 161 Cal.App.3d 583, 585.) 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. (Kwok v. Bergren (1982) 130 Cal.App.3d 596; Bevill v. Zoura (1994) 27 Cal.App.4th 695, 697 [3-day notice asking for more than one year’s rent is defective.])

          A complaint for unlawful detainer fails to allege facts sufficient to constitute a cause of action if the statutory notice requirements are not strictly complied with. (Baugh v. Consumers Associated, Limited (1966) 241 Cal.App.2d 672, 674, superseded by statute on other grounds in WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526 (noting that with the enactment of Civ. Code Section 1161.1 commercial rent may be estimated).) For residential unlawful detainers, the precise amount of rent due must be stated. (CC § 1161(2).)

IV.     ANALYSIS

          This UD action is alleged on a form pleading. At ¶8.1 Plaintiff alleges the tenancy was terminated for “just cause” (Civ. Code §1946.2(b)(1)- presumably under (A), for nonpayment of rent); and that defendants have failed to vacate. Paragraph 9 alleges the Bermejos were served with a 3-day notice to quit and that the notice expired on June 6, 2023.  Paragraph 10 alleges the 3-day notice was personally served on Sheri Bermejo on May 26, 2023. At ¶12, the rent owing is alleged to be $28,948.11.

          A copy of the 3-day notice is attached to the pleading. The notice states that rent in the amount of $28,948.11 is due for the period from April 16, 2021 to December 31, 2022 – an approximately 20-month period of time.

          There are attachments to the complaint. One attachment indicates that the “back rent” upon which the 3-day notice is based (the $28,948.11) “is for unpaid attorneys’ fees due and owing to Plaintiff following a finding of ‘No Cause Determination’ of Defendants’ complaint to the Department of Fair Employment and Housing.” Plaintiff alleges that, pursuant to ¶16 of the lease, these attorney fees constitute additional “rent.”

          A copy of the lease is attached to the Complaint. Its terms are somewhat unusual. The original landlord is identified as Naneen Leavenworth, as trustee of the Naneen Leavenworth 1819 Wilson Avenue Revocable Trust dated February 9, 2012. The tenants are listed as Sheri and Carlos Bermejo. The lease specifies a month-to-month tenancy during the lifetime of Naneen Leavenworth. Upon her death, the lease converts to a lease for a fixed term, which is set to expire December 31, 2030. The lease provides that the $2,000 monthly rent shall not be increased for any reason.

Pursuant to an assignment following the death of Naneen Leavenworth, the lease was assigned to Plaintiff 1819 Wilson Avenue LLC.

          Paragraph 16 of the lease contains an attorney fee provision which, by its terms, applies “in the event either party shall bring any action or proceeding for damages for an alleged breach of this lease, to recover rents, or to enforce, protect or establish any other remedy of either party, or to construe the Lease.” The last sentence of ¶16 provides, “All amounts due Landlord under this Lease other than Rent constitute additional rent.”

          Defendants make the following arguments on demurrer:

1. The 3-day notice is defective because it seeks rent due more than one year ago;

2. The 3-day notice is defective because it does not specify that Saturdays, Sundays, and holidays are excluded from the 3-day calculation;

3. Defendants do not owe Plaintiff attorney’s fees under the lease because:

          a. the DFEH complaint was not an action brought by Defendants but by the DFEH; and

          b. there is no indication that the DFEH action was based on a breach of the lease, to enforce the lease, or to construe the lease;

4. The complaint does not allege that Plaintiff was the prevailing party in the DFEH proceeding; but assuming it was, the proper forum to recover attorney’s fees would be in the DFEH proceeding.

          As to the Defendants’ argument that the 3-day notice seeks rent due more than one year ago, the argument has merit. Alleging dates going back more than one year renders the notice defective. (Bevill v. Zoura (1994) 27 Cal.App.4th 695, 697.) In opposition, Plaintiff states that the amount sought, $28,948.11, is rent in the form of attorney’s fees incurred in connection with the DFEH proceeding. (Opposition, p.2: 7-9.) This does not help the Plaintiff’s position, however.  Even if the 3-day notice is based upon attorney’s fees sought in the form of past due rent, by its terms the notice specifies a period more than one year ago.  Therefore, the 3-day notice is defective. On this basis, the demurrer must be sustained.

          The argument that the 3-day notice is defective because it does not specify that Saturdays, Sundays, and holidays are excluded also has merit.  Service of the notice occurred on a Friday, which could lead Defendants to believe that the rent had to be paid by Monday.

          In opposition, Plaintiff cites to Berryman v. Gibson (1908) 7 Cal.App. 679, 681-682, for the proposition that the notice does not need to specify the excluded days.  However, this case was decided in 1908, without respect to CCP Section 1161(2). CCP 1161(2) provides:  “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…” (CCP § 1161(2).)

          The three-day notice is defective for this additional reason, and the demurrer should be sustained for this reason as well.

          The Defendants’ arguments about the DFEH proceeding, which are referenced in Attachment 17 to the Lease and are the stated basis for the notice to quit, are also persuasive.  Even assuming Plaintiff is entitled to recover its attorneys’ fees after a no-cause finding in an unspecified DFEH proceeding (a fact that Plaintiff has not established), such fees do not constitute amounts due under the Lease.  Paragraph 16 of the Lease cannot be construed to support an unlawful detainer proceeding on such a basis. 

V.       ORDER

          Because Plaintiff will be unable to cure the defects in its Complaint, the demurrer is sustained without leave to amend.

Defendants are ordered to give notice of this ruling, and to serve and lodge a proposed Judgment of Dismissal forthwith.          

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT