Judge: Mark E. Windham, Case: 24STUD05853, Date: 2024-11-05 Tentative Ruling

Case Number: 24STUD05853    Hearing Date: November 5, 2024    Dept: 26

Foster v. Cunningham, et al.

JUDGMENT ON THE PLEADINGS

(CCP §§ 430.31, et seq., 435, et seq.)

TENTATIVE RULING:

Defendant Donald Cunningham’s Motion for Judgment on the Pleadings is GRANTED.

ANALYSIS:

Plaintiff Jennita Foster dba Guest House Management (“Plaintiff”) filed the instant action for unlawful detainer against Defendant Donald Cunningham (“Defendant”) on May 8, 2024. Defendant filed an answer on the same date. This action was deemed related to Foster v. Cunningham, LASC Case No. 24STUD01960 on May 16, 2024. On July 16, 2024, the unlawful detainer court determined that possession was no longer at issue and put the case out for reassignment. (Minute Order, 07/16/24.) Following assignment of the case to Department 26 in the Spring Street Courthouse, Defendant filed the instant Motion for Judgment on the Pleadings on September 30, 2024. No opposition has been filed to date.

Discussion

Allegations in the Complaint

Plaintiff brought this action for unlawful detainer against Defendant with respect to the premises located at 1628 West Blvd., #3, Los Angeles, California (“the Premises”). (Compl., ¶¶2-3.) On February 11, 2023, Defendant agreed to rent the premises for $2,190.00 per month, pursuant to a written agreement. (Id. at ¶6.) Defendant was served with a 3-day notice to perform covenants or quit on May 2, 2024, which expired on May 7, 2024. (Id. at ¶¶8-9.) Plaintiff demands possession due to the expiration of a fix-term lease; the amount owing is $3,577.76 from the date of service of the 3-day notice. (Id. at ¶¶11-12.) The fair rental value of the Premises is $80.00 per day and Plaintiff is also entitled to statutory damages. (Id. at ¶¶13-14.)

Request for Judicial Notice

Defendant ask the Court to take judicial notice of the trial order dated June 21, 2024 in LASC Case No. 24STUD05853 that possession of the Premises is no longer at issue. The request is granted pursuant to Evidence Code section 452, subdivision (d).

Judgment on the Pleadings

Defendant moves for judgment on the pleadings on the grounds that (1) possession of the Premises is no longer at issue but Plaintiff has not filed an amended Complaint; and (2) the Complaint fails to state a cause of action for unlawful detainer because the Notice to Vacate is defective. A claim for unlawful detainer under Civil Code section 1161, Plaintiff’s moving statute, exists when the tenant continues in possession of the property. (Code Civ. Proc., § 1161.) Once possession is no longer at issue, the plaintiff must convert the action to one for damages by filing an amended complaint. (Code Civ. Proc., § 1952.3, subd. (a)(1).) Here, despite possession of the Premises no longer being at issue, Plaintiff has not filed an amended complaint.

Next, Defendant argues that the Notice to Quit issued by Plaintiff did not strictly comply with the statutory requirements. The statutory requirements in unlawful detainer proceedings “must be followed strictly, otherwise a landlord's remedy is an ordinary suit for breach of contract with all the delays that remedy normally involves and without restitution of the demised property.” (WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.) The Notice (1) did not give Defendant the option to sign any written lease renewal or extension as a means to cure; and (2) did not identify a witness concerning the reason for eviction. (Compl., Exh. 2.) These defects are in violation of the Los Angeles Municipal Code and state law. (See LAMC, § 151.09(C)(1); Delta Imports, Inc v. Municipal Court (1983) 146 Cal.App.3d 1033, 1036 [citing Hinman v. Wagnon (1959) 172 Cal.App.2d 24, 27] [“Where the condition or covenant allegedly violated is capable of being performed, the notice must give the tenant the alternative of performing or quitting possession.”].) Due to the defective Notice to Quit issued by Plaintiff, the Complaint also did not state a cause of action for unlawful detainer when possession of the Premises was at issue.

Based on the foregoing, the Complaint does not allege either a cause of action for unlawful detainer, nor a cause of action for damages.

Conclusion

Defendant Donald Cunningham’s Motion for Judgment on the Pleadings is GRANTED.

Court clerk to give notice.