Judge Randolph M. Hammock, Case 22STCV19824 2022-12-16 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV19824, Date: 2022-12-16 Tentative Ruling

Plaintiffs Gloria Shulman Hughes and John E. Hughes, both individuals and co-Trustees of the Hughes Shulman Family Trust (the “Trust”), bring this unlawful detainer action against Defendants Living the Dream, Applied Plant Science, Inc., Michael Straumietis, and California Numbered Company 4009746. The Trust is the sole owner of real property located at 1646 Blue Jay Way, Los Angeles, CA 90069, which includes a single-family residence. Plaintiffs allege that Defendants Living the Dream and Applied Plant Science, Inc., as tenant and subtenant, respectively, are in unlawful possession of the property. Plaintiff also alleges that the tenant subleased the property in violation of the lease agreement.

Defendant’s Demurrer to the Complaint is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate at the hearing how it can amend to show compliance with the Tenant Protection Act, or conversely, how it can allege sufficient facts showing it was exempt from the Act.

The moving party has not attached a declaration reflecting compliance with the meet and confer obligation. (CCP § 430.41.) Plaintiff does not raise the issue in opposition. To conserve judicial resources and without objection by the opposing party, the court exercises its discretion to hear the motion absent the meet and confer declaration, assuming none occurred.

The court takes judicial notice of the exhibits without assuming the truth of the assertions contained therein. (See Seelig v. Infinity Broad. Corp. (2002) 97 Cal. App. 4th 798, 808.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Defendant Living the Dream demurs to the Complaint on the ground that it fails to allege facts sufficient to state a cause of action for unlawful detainer against it. Specifically, Defendants first argue that Plaintiffs have not alleged compliance with the notice requirements of the Tenant Protection Act (“the Act”) (Cal. Civ. Code § 1946.2.) In opposition, Plaintiffs argue the Act does not apply here.

Notwithstanding any other law, after a tenant has continuously and lawfully occupied a residential real property for 12 months, the owner of the residential real property shall not terminate the tenancy without just cause, which shall be stated in the written notice to terminate tenancy.

Moreover, before issuing a notice to terminate for just cause for a curable lease violation, the Act requires that an owner must first give the tenant a three-day notice of the violation with an opportunity to cure pursuant to CCP § 1161(3). If not cured within the time period set forth in the notice, a three-day notice to quit without an opportunity to cure may be served. (Civ. Code § 1946.2(c).) Defendant contends that the requisite notice, among other things, have not been satisfied here.

In opposition, Plaintiff first argues that section 1946.2 does not apply to a sublessor such as Living the Dream who does not “occupy” the property. “LTD as a sublessor does not occupy the Property. Rather, its sublessee Applied Plant Sciences, is currently in possession of the Property…Therefore, Plaintiffs had no obligation under Civil Code Section 1946.2 to give notice under Section 1946.2.” (Opp. 4: 14-17.)

On this point, Plaintiff’s only authority is a citation to Merriam-Webster Dictionary, which defines “occupy” to mean “to reside in as an owner or tenant.” As Defendant notes, however, they definition of “tenancy” states that it includes “a lease or sublease.” (See Civ. Code 1946.2(i)(3) [“Tenancy” means “the lawful occupation of residential real property and includes a lease or sublease.”].) Moreover, Merriam Webster also defines the word occupy to mean “to take or hold possession or control of.” (See RJN, Exh. 5.) As the original tenant or lessee, Living the Dream undoubtedly had control of the Property. Thus, absent authority saying otherwise, this court concludes that Defendant did in-fact “occupy” the property as lessee, even if it later sub-leased or assigned the Property to a third party.

Plaintiff also argues that section 1946.2 does not apply because Defendants used the property for business purposes, and not as a “dwelling unit.” Plaintiff states: “Defendants are business entities who entered the lease to use the Property for business purposes.” (Opp. 4: 19-20.) The Act provides that it “shall apply to all persons who hire dwelling units located within this state including tenants, lessees, boarders, lodgers, and others, however denominated.” (Civ. Code § 1940(a).) It goes on to define “dwelling unit” to mean “a structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household.” (Civ. Code § 1940(c).)

The Complaint alleges in more than one place that the parties entered into a “residential lease” (Compl. ¶¶ 8, 11) and that the subsequent sublease was also for a residential lease. (Id. ¶ 15.) The property is “a six-bedroom, six-bathroom, 6,339 square foot single family residence.” (Id. ¶ 3.) It also alleges that Straumietis, as Living the Dream’s subtenant, “resides at the Property.” (Id. ¶ 6.) Accordingly, Plaintiff’s own allegations demonstrate that Defendant and other subtenants used the property as a residence.

Plaintiff alleges its counsel sent counsel for Tenant a letter on March 18, 2022, which “demanded compensation for damages to the Property resulting from Tenant’s breach of Lease, demanded reimbursement for expenses the Trust had paid at the request of Tenant that were Tenant’s obligation, rejected the Extension Notice and itemized the grounds for Landlord’s decision not to extend the Lease.” (Compl. ¶¶ 23, 37; Exh. 7.)

The Complaint alleges a breach of the lease in that “Tenant assigned the Sublease to Sublessor without the knowledge or written consent of the Landlord and in violation of Paragraph 22 of the Lease.” (Compl. ¶ 15.) Then, “[o]n April 13, 2022, Landlord served on Tenant and Subtenant a three-day notice to cure or quit based upon”:

[2] “the installation without the knowledge or consent of Landlord of a power generator and liquid petrol tanks without permits and in violation of law and the Lease.” (Id. ¶ 26.)

[3] “the disabling without the knowledge or consent of Landlord of the fire alarm system on the Property which disabled the smoke alarms and carbon monoxide detectors required by the Los Angeles Fire Department.” (Id. ¶ 27.)

Accordingly, at least on its face, the Complaint alleges what Plaintiff calls “material breaches” of the lease aside from the expiration of the lease term. (Civ. Code § 1946.2(b)(1)(B) [“just cause” includes “breach of a material term of the lease”].) The court therefore rejects Defendant’s contention that the Complaint “is expressly based solely on the expiration of LTD’s lease.” (Reply 3:1-2.)

After the three-day notices, Plaintiff followed up with a letter to Defendant’s counsel on April 20, 2022, “point[ing] out that Tenant had not cured the breaches of Lease subject to the three-day notices.” (Compl. ¶ 30; Exh. 13.) The letter further stated that “the Lease shall terminate by [its] own terms on June 1, 2022.” (Id.) The Complaint concludes that “Landlord had a good faith basis to withhold approval for the Lease option, and Tenant was notified of these grounds through correspondence dated March 18, 2022, and the Three-Day Notices to Cure or Quit dated April 13, 2022.” (Compl. ¶ 48.)

Considering the above allegations, Plaintiff has not pled compliance with the Act. As Defendant notes, the Act requires a two-step notice process. Before issuing a notice to terminate for just cause for a curable lease violation, the owner must first give the tenant a three-day notice of the violation with an opportunity to cure pursuant to CCP § 1161(3). [FN 1] If not cured within the time period set forth in the notice, a second three-day notice to quit without an opportunity to cure may be served. (Civ. Code § 1946.2(c).)

Based on the face of the Complaint, the only time Plaintiff provided formal three-day notices was on April 13, 2022. To be sure, the Complaint does allege other correspondence between the parties that placed Defendant on notice of Plaintiff’s intent to end the lease. However, Plaintiff has failed to demonstrate that these written notices constitute the additional requisite three-day notice to quit under the Act. Rather, the April 20, 2022, letter stated that “the Lease shall terminate by [its] own terms on June 1, 2022.” (Compl. ¶ 30.) Finally, Plaintiff fails to provide authority in which a court has recognized substantial compliance with the Act. For these reasons, as a matter of law, Plaintiff has failed to sufficiently allege compliance with the express provisions of the Tenant Protection Act. The demurrer is therefore well-taken.

Accordingly, Defendant’s Demurrer to the Complaint is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate at the hearing how it can amend to show compliance with the Tenant Protection Act, or conversely, how it can allege facts showing it was exempt from the Act.

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

Judge of the Superior Court

FN 1 - While the demurrer is sustained on other grounds, it is also possible that Plaintiff waived the alleged breaches by continuing to accept rent and permitting Defendant to remain in position of the premises through the end of the lease term. (See Compl. ¶ 41.) Three-day notice requiring forfeiture “shall be nullified and the lease or rental agreement shall remain in effect…if the breach is waived by the lessor or the landlord after service of the notice.” (CCP 1161.5.)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.