Judge: Michael E. Whitaker, Case: 23SMCV02573, Date: 2023-08-21 Tentative Ruling

Case Number: 23SMCV02573    Hearing Date: August 21, 2023    Dept: 207

TENTATIVE RULING

MOTION

Plaintiff Chateau Brentana LP brings this unlawful detainer action against Defendant Ann Margit Cherico (“Defendant”).  Defendant demurs to the complaint on the grounds that it fails to state a cause of action and is uncertain under Code of Civil Procedure sections 430.10, subdivisions (e) and (f). 

Plaintiff opposes Defendant’s demurrer.  On August 4, the Court granted Plaintiff’s ex parte application for an order shortening time to present on Defendant’s demurrer, and ordered the Reply to be filed and served on or before August 14, 2023.  No reply was filed.

ANALYSIS

1.      MEET AND CONFER REQUIREMENTS

Code of Civil Procedure section 430.41, subdivision (a) provides:  “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”  However, subdivision (d) clarifies that this requirement does not apply to unlawful detainer actions.  Plaintiff has not disputed this.

Therefore, the Court determines that there is no requirement to meet and confer before filing a demurrer in an unlawful detainer action.

2.      DEMURRER

Defendant demurs on the grounds that the complaint is uncertain and Plaintiff has failed to state a cause of action.

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) 

A.    UNCERTAINTY

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Here, Defendant does not demonstrate that any portions of the complaint are so bad that Defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against Defendant.  The Court thus declines to sustain Defendant’s demurrer on the basis of uncertainty. 

B.     FAILURE TO STATE A CAUSE OF ACTION

Defendant presents four arguments:

(1)   Plaintiff failed to give Plaintiff a notice of violation and opportunity to cure, pursuant to Code of Civil Procedure section 1161, subsection (3), prior to serving the 3-day notice to quit, as is required by Civil Code section 1946.2, subdivision (c);

(2)   A notice to pay rent that includes amounts accrued between October 1, 2021 and March 31, 2022 requires 15 days to comply pursuant to Code of Civil Procedure, section 1179.03;

(3)   Plaintiff did not provide a governmental rental assistance program notice pursuant to Code of Civil Procedure section 1179.10; and

(4)   Plaintiff did not indicate which subsection under Civil Code section 1942, subdivision (g)(1) exempts Plaintiff’s tenancy from the Tenant Protection Act of 2019 (Civil Code section 1946.2).

The Court analyzes each argument in turn.

1.      Notice and Opportunity to Cure

Code of Civil Procedure section 1161 provides the notice procedures for various circumstances giving rise to an unlawful detainer action.  For example, subpart (1) applies “When the tenant continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to the tenant; provided the expiration is of a nondefault nature [….]”  Similarly, subpart (2) applies “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 subpart (3) applies “When the tenant continues in possession, in person or by subtenant, after a neglect or failure to perform other conditions or covenants of the lease or agreement under which the property is held [….]”

Civil Code section 1946.2, subdivision (c) provides:

Before an owner of residential real property issues a notice to terminate a tenancy for just cause that is a curable lease violation, the owner shall first give notice of the violation to the tenant with an opportunity to cure the violation pursuant to paragraph (3) of Section 1161 of the Code of Civil Procedure. If the violation is not cured within the time period set forth in the notice, a three-day notice to quit without an opportunity to cure may thereafter be served to terminate the tenancy.

Defendant argues that Plaintiff failed to first give Defendant notice of the violation and an opportunity to cure, as is required by Civil Code section 1946.2, subdivision (c), before serving Defendant with the 3-day notice to quit. 

Plaintiff argues that the failure to pay rent is “at-fault just cause” pursuant to Section 1946.2, subdivision (b)(1), and therefore “reliance on this portion of the statute would not result in the availability of the remedy sought.”  Plaintiff further argues that service of a subsequent notice under subdivision (c) is optional because of the statute’s use of the word “may.”  (Opp. at p. 6.) 

Both parties’ arguments miss the mark.  Plaintiff served Defendant with a 3-day “Pay Rent or Quit” notice on the basis that Plaintiff has failed to pay rent, not on the basis that Plaintiff has failed “to perform other conditions or covenants of the lease agreement[….]”  (Code. Civ. Proc., § 1161, subsection (3), emphasis added.)  Thus, Plaintiff served the 3-day pay or quit notice pursuant to Code of Civil Procedure 1161, subsection (2), not a 3-day notice to cure pursuant to subsection (3).  Because Civil Code section 1946.2, subdivision (c) applies to “curable lease violation[s]” pursuant to Code of Civil Procedure section 1161, subsection (3), its provisions are inapplicable here.

2.      15 Days to Comply

Plaintiff next argues that a notice to pay rent that includes amounts that accrued between October 1, 2021 and March 31, 2022 requires 15 days’ notice pursuant to Code of Civil Procedure section 1179.03. 

Section 1179.03, subdivision (b) applies to notices that demand payment of rent that came due during the “protected time period” as defined by Section 1179.02.  Further, Section 1179.03, subdivision (c) applies to notices that demand payment of rent that came due during the “transition time period” as defined by Section 1179.02.  Both subdivisions (b) and (c) require that the time period in which the tenant must pay or deliver possession be no shorter than 15 days, excluding Saturdays, Sundays, and other judicial holidays.

Section 1179.02, subdivision (f) defines the “protected time period” as the time period between March 1, 2020 and August 31, 2020.  Subdivision (i) defines “transition time period” as “the time period between September 1, 2020 and September 30, 2021.”  Thus, the statutes cited by Defendant apply to rent amounts that came due between March 1, 2020 and September 30, 2021.  For the avoidance of doubt, subdivision (a) defines “covered time period” as “the time period between March 1, 2020 and September 30, 2021.” 

The Complaint alleges that Defendant on or about September 15, 2012, Defendant originally agreed to pay Plaintiff monthly rent of $2,437, and that the monthly rent has since increased to $2,917.50 per month.  (Compl. ¶ 6.)  The Complaint further alleges that Defendant owes Plaintiff $29,882.88 in back rent.  (Compl. ¶ 12 and Ex. B attached thereto [3-day notice to pay rent or quit].) 

While it is unclear from the face of the complaint exactly when the back owed rent amounts became due, it cannot be said that Plaintiff fails to state a cause of action as a matter of law.  Unless and until presented with evidence to the contrary, the logical inference is that the outstanding rental amounts owed accrued in the consecutive months preceding the February 23, 2023 notice to pay or quit.  Plaintiff argues in reply that the $29,882.88 requested represents about 10.25 months (at the increased monthly rate of $2,917.50.)  Ten and a quarter (10.25) months prior to February 23, 2023 is approximately April 15, 2022, long after the relevant time period for which a 15-day notice was required. 

Even if the time period were calculated using the original lower monthly rent of $2,437, it would encompass approximately twelve and a quarter (12.25) months.  Twelve and a quarter (12.25) months prior to February 23, 2023 is approximately February 15, 2022.  Thus, at this stage, it cannot be said that the complaint fails to state a cause of action based on Plaintiff providing Defendant 3 days’ notice, as opposed to 15 days’ notice.

3.      Notice of Governmental Assistance Programs

Defendant next argues that Plaintiff failed to serve Government Rental Assistance Program notices pursuant to Code of Civil Procedure section 1179.10. 

Code of Civil Procedure section 1179.10, subdivision (a) applies to notices served before April 1, 2022.  Similarly, Code of Civil Procedure section 1179.10, subdivision (b) applies to notices served on or after April 1, 2022 and before July 1, 2022.  Here, Plaintiff served Defendant the 3-day pay or quit notice on February 23, 2023.  Therefore, Code of Civil Procedure section 1179.10 is inapplicable here.

4.      Exemption from the Tenant Protection Act of 2019

Defendant’s final argument is that Plaintiff’s complaint fails to state a cause of action, because in paragraph 7 indicates that the tenancy is not subject to the Tenant Protection Act of 2019 and lists “the specific subpart supporting why tenancy is exempt” as Civil Code section “1946.2(g)(1)” but does not specify whether Plaintiff relies on subpart (A) or (B). 

Civil Code section 1946.2, subdivision (g)(1) provides:

This section does not apply to the following residential real property:

(A) Residential real property subject to a local ordinance requiring just cause for termination of a residential tenancy adopted on or before September 1, 2019, in which case the local ordinance shall apply.

(B) Residential real property subject to a local ordinance requiring just cause for termination of a residential tenancy adopted or amended after September 1, 2019, that is more protective than this section, in which case the local ordinance shall apply. For purposes of this subparagraph, an ordinance is “more protective” if it meets all of the following criteria:

(i) The just cause for termination of a residential tenancy under the local ordinance is consistent with this section.

(ii) The ordinance further limits the reasons for termination of a residential tenancy, provides for higher relocation assistance amounts, or provides additional tenant protections that are not prohibited by any other provision of law.

(iii) The local government has made a binding finding within their local ordinance that the ordinance is more protective than the provisions of this section.

Plaintiff argues in reply that the tenancy is exempt from the Tenant Protection Act of 2019 pursuant to both subsections (A) and (B).  Therefore, Plaintiff has sufficiently identified which subpart of the Tenant Protection Act of 2019 exempts Defendant’s tenancy here.

CONCLUSION AND ORDER

The Court overrules Defendant’s demurrer to Plaintiff’s unlawful detainer complaint.  Defendant shall file and serve an answer to the complaint on or before August 28, 2023. 

Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same/ 

DATED:  August 21, 2023                                                     ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court