Judge: Michael Shultz, Case: 22CMUD01415, Date: 2023-03-08 Tentative Ruling
Case Number: 22CMUD01415 Hearing Date: March 8, 2023 Dept: A
22CMUD01415
Victor Saucedo v. Jose DeJesus Orozco, Yuribeth Chavez
[TENTATIVE] ORDER
This unlawful
detainer action arises from Defendants’ alleged failure to pay rent for
residential real property.
Defendant argues
that the action is premised on a three-day notice to pay rent or quit. The
notice is defective because Plaintiff overstated the rent. During the tenancy, Plaintiff
increased the rent from $900 per month to $1,000 per month, however, the rent
increase was not in writing as required by law.
The Court’s file
does not reflect that Plaintiff filed an opposition. However, in unlawful
detainer actions, an opposition and reply can be made orally at the time of the
hearing. (Cal Rules of
Court, Rule 3.1351).
A motion for
summary judgment in an unlawful detainer action may be made at any time after
the answer is filed upon giving five days’ notice. The motion shall be granted
or denied on the same basis as a motion under Code
of Civil Procedure, section 437c. (Code Civ. Proc., § 1170.7). Summary judgment is proper “if all the papers submitted show that
there is no triable issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” (Code
Civ. Proc., § 437c, subd. (c). The motion shall be granted only if it completely disposes of a
cause of action, an affirmative defense, a claim for damages, or an issue of
duty.” Code
Civ. Proc., § 437c, subd. (c).
Where a defendant seeks summary
judgment or adjudication, defendant must show that either “one or more elements
of the cause of action, even if not separately pleaded, cannot be established,
or that there is a complete defense to that cause of action.” Id. Once the defendant meets this burden, the burden shifts to the
plaintiff to show that a “triable issue of one or more material facts exists as
to that cause of action or defense thereto.”
Id.
Until the moving defendant has
discharged its burden of proof, the opposing plaintiff has no burden to come
forward with any evidence. Once the moving party has discharged its burden as
to a particular claim, however, the plaintiff may defeat the motion by
producing evidence showing that a triable issue of one or more material facts
exists as to that cause of action. Code Civ. Proc., §
437c,(p)(2).
A tenant is guilty of unlawful
detainer if the tenant continues in possession after default in the payment of
rent pursuant to the lease agreement, and the tenant is served with three days’
notice requiring payment, among other particulars. (Code Civ. Proc., § 1161,(2)). The notice must state
the amount due. The notice is invalid and will not support an unlawful detainer
if it seeks more than the amount of rent due. (Levitz
Furniture Co. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4th 1035, 1038).
The complaint alleges that
Defendants agreed to pay $1,000 in rent on a monthly basis. (Complaint, ¶ 6(2)). The
three-day notice to pay rent or quit states that Defendants owed $6,000 for the
period April 1, 2022 through September 30, 2022. (Complaint, .pdf page 5). Among
other defenses, Defendants assert that the notice demanded more rent that on
was owed. (Complaint, .pdf page 6).
In responses to interrogatories, Plaintiff
stated that the monthly rent for the premises at the commencement of the
tenancy was $900.00. (Mot., Ex. C, 3:7-9.). Plaintiff
disclosed that at the end of 2019, Plaintiff raised the rent by $100 based on a
verbal agreement to Plaintiff Orozco. (Mot. Ex. C, 4:3-6). An increase
in rent must be given to the tenants in writing and delivered personally or by
mail as prescribed by Civil
Procedure, section. (Civ.
Code, § 827,(b)). Based on Plaintiff’s responses, the rental agreement was made
verbally. The requirements for a written notice of rental increases are
mandatory. (Cal Civ Code §
1947.12(e)). While
Plaintiff’s discovery responses also indicates that Defendants paid rent in
2020 and 2021, after the rent increase, “[a]ny waiver of the rights under this
section shall be void as contrary to public policy.” (Cal Civ Code § 1947.12), (Mot. Ex. C, 4:23-26).
As there is no dispute that
Plaintiff did not give written notice of the rental increase in compliance with
the foregoing statutes, the three-day notice to pay rent or quit impermissibly overstates
the amount of rent due and cannot support the unlawful detainer. Accordingly, Defendants
Motion for Summary Judgment is GRANTED.