Judge: Mark H. Epstein, Case: 24SMUD01145, Date: 2024-07-10 Tentative Ruling

Case Number: 24SMUD01145    Hearing Date: July 10, 2024    Dept: I

The matter is here on demurrer.  The demurrer is OVERRULED.

Plaintiff filed this UD action alleging that defendants entered into an oral agreement with the prior landlord for a month to month lease.  It required rent of $830/month.  Plaintiff alleges that defendant is in violation of the lease because defendant modified the unit without permission by installing a doorway, putting up drywall, and sealing the garage door shut.  Plaintiff provided a notice to quit, but defendant asserts that the notice is not valid.  According to defendant, plaintiff gave defendant 30 days to cure the problem, but defendant was unable to cure legally because the work would require a permit from the City and only the owner can obtain a permit.  Thus, defendant argues, the right to cure was illusory and as a consequence, the notice was invalid. 

It appears that defendant agrees that the actual notice to quit was preceded by a notice to cure.  Plaintiff argues that defendant cannot be heard to complain that it cannot cure the illegal activity in which it engaged.  Further, the notice to quit states that the defendant refused to allow plaintiff access to the unit to determine if the problem had been corrected. 

The court agrees with plaintiff here.  On its face, the requirements were met.  The notice to quit was preceded by a notice to cure.  The fact that defendant’s past acts may have made it impossible as a practical matter to cure is no basis for the demurrer.  Further, there is no evidence of any attempt by defendant to try and comply.  For example, there is no evidence that defendant attempted to obtain a permit but was thwarted by plaintiff.  And even if there were, such would not be considered on demurrer.

The bottom line is that it is possible that this is one of those breaches that is incurable.  Or it could be that it was curable, but defendant made no effort to cure it.  Or it could be that it was curable but plaintiff wrongfully impeded the cure attempt.  Either way, the issue is better resolved by way of summary judgment or trial.  Nor does the court believe that waiver is established on the face of the complaint.  The demurrer is OVERRULED.  Defendant has 5 days to answer.