Judge Ronald F. Frank, Case 23TRCV00610 2023-04-21 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV00610, Date: 2023-04-21 Tentative Ruling

Case Number: 23TRCV00610 Hearing Date: April 21, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: April 21, 2022¿¿

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CASE NUMBER: 23TRCV00610

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CASE NAME: L.E. Valdry v. Breealle Lazahneen Hollyfield, et al.

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MOVING PARTY: Defendant, In Pro Per, Breealle Lazahneen Hollyfield

RESPONDING PARTY: None.

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TRIAL DATE: Not Set

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MOTION:¿ (1) Demurrer¿

Tentative Rulings: (1) OVERRULED. Answer to be filed within 5 days

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I. BACKGROUND¿¿

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A. Factual¿¿

On March 6, 2023, Plaintiff, L.E. Valdry (“Plaintiff”), filed an unlawful detainer Complaint against Defendant, Breealle Lazahneen Hollyfield (“Defendant”).

B. Procedural¿¿

On March 13, 2023, Defendant filed a demurrer to Plaintiff’s complaint. To date, no opposition has been filed.

¿II. MOVING PARTY’S GROUNDS FOR THE DEMURRER¿¿

Defendant demurs to Plaintiffs complaint because Defendant argues that Plaintiff’s claim fails to state a cause of action against the demurring Defendant. Defendant argues that the 3-day notice to Pay/Quit was and is “inappropriate.” The Complaint attaches a copy of the notice to pay or quit, and attaches a proof of service showing it was served by posting an mailing.

III. ANALYSIS¿

A. Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿

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B. Discussion

First, Defendant argues that the 3-Day Notice to Pay/Quit is “inappropriate” and inaccurate because Defendant argues that the 3-Day Notice that was served on Defendant does not contain the provision required by Civil Code § 1946 concerning abandoned property.

Civil Code § 1946 states:

A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of that party’s intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding 30 days; provided, however, that as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days’ written notice thereof at any time and the rent shall be due and payable to and including the date of termination. It shall be competent for the parties to provide by an agreement at the time the tenancy is created that a notice of the intention to terminate the same may be given at any time not less than seven days before the expiration of the term thereof. The notice herein required shall be given in the manner prescribed in Section 1162 of the Code of Civil Procedure or by sending a copy by certified or registered mail addressed to the other party. In addition, the lessee may give the notice by sending a copy by certified or registered mail addressed to the agent of the lessor to whom the lessee has paid the rent for the month prior to the date of the notice or by delivering a copy to the agent personally. The notice given by the lessor shall also contain, in substantially the same form, the following:

“State law permits former tenants to reclaim abandoned personal property left at the former address of the tenant, subject to certain conditions. You may or may not be able to reclaim property without incurring additional costs, depending on the cost of storing the property and the length of time before it is reclaimed. In general, these costs will be lower the sooner you contact your former landlord after being notified that property belonging to you was left behind after you moved out.”

As a preliminary matter, there is enough included in the complaint for Plaintiff to properly plead an unlawful detainer cause of action against Defendant. The necessary elements for an unlawful detainer cause of action are: (1) that the tenant is in possession of the premises; (2) that the tenant’s continued possession is without the landlord’s permission; (3) that the tenant is in default for nonpayment of rent; (4) that the tenant was properly served with the 3-day notice; and (5) that the default continues after the notice period has elapsed. Code Civ. Proc., §1161 (2); Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 613.

Here, Plaintiff’s complaint alleges that Defendant is still in possession of the property (Complaint, ¶ 3); that Defendant’s continued possession is without Plaintiff’s permission; that Defendant is in default for nonpayment of rent (Complaint, ¶ 10); that Defendant was properly served with the 3-day notice (Complaint, ¶ 7(a)(1), 8(a)(3)); and that the default continues after the notice period has elapsed. The foregoing facts pleaded in the Complaint are sufficient to constitute each of the elements of Plaintiff’s unlawful detainer cause of action. However, Defendant argues that the 3-day notice lacks certain mandatory language regarding what will happen to his personal property if abandoned after an eviction, and language regarding a foreclosure. But the abandoned property language required in a Civil Code section 1946 eviction (for no specified reason) is inapplicable here because the 3-day notice does specify a reason (failure to pay rent), and the foreclosure eviction language is not applicable here because the Complaint alleges a landlord-tenant relationship, not a lender-borrower relationship

The Court finds that the 3-day notice issued to Defendant is proper here.

IV. CONCLUSION¿¿

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For the foregoing reasons, Defendant’s Demurrer is OVERRULED. Defendant shall file an Answer only within 5 days.

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Plaintiff to give notice.¿¿¿¿