Judge Thomas D. Long, Case 22STCV29121 2022-11-21 Tentative Ruling

On September 1, 2022, Plaintiffs Olivia Nervo and Miriam Nervo (collectively, “Plaintiffs”) filed this unlawful detainer action against Defendants Chris Neary and Tuere McCall (collectively, “Defendants”). Defendants filed an answer on October 13, 2022.

At the November 10, 2022 hearing on the motion, the Court continued the hearing and ordered supplemental briefing.

Plaintiffs argue that the motion must fail due to Defendants’ failure to meet and confer under Code of Civil Procedure section 439. (Opposition at p. 3.) However, that section does not apply to unlawful detainer actions. (Code Civ. Proc., § 439, subd. (d)(2).)

Defendants’ request for judicial notice of their notification to landlord of inability to pay rent and their October 17, 2022 COVID-19 application is denied. These are not the types of documents that are subject to judicial notice. (See Evid. Code, §§ 451-453.)

A motion for judgment on the pleadings is the functional equivalent to a general demurrer. (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198.) Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The Court “must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220.)

Defendants argues that the three-day notice to pay or quit does not contain the required information. (Notice of Motion at p. 5; see Motion at pp. 3-5.)

Plaintiffs argue that Defendants’ filing of an answer or other motions waives any defect in service. (Opposition at p. 4.) But “under California law, the tenant of a dwelling cannot waive the provisions of section 1161, subdivision (2).” (Gersten Companies v. Deloney (1989) 212 Cal.App.3d 1119, 1128.) The statutory requirements are strictly construed, and an unlawful judgment cannot be supported by a defective notice. (See Esa Management, LLC v. Jacob (2021) 63 Cal.App.5th Supp. 1, 278 Cal.Rptr.3d 482, 484.)

A three-day notice must state “the amount that is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment . . . , or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure.” (Code Civ. Proc., § 1161, subd. (2).)

The three-day notice attached to the Complaint states that Defendants owe $32,000.00 in unpaid rent from April 1, 2022 through August 1, 2022. (Complaint, Ex. 2.) It includes the name, telephone number, and address of the landlords. It also states, “Payment may be made at any time within the time stated: (Monday through Saturday 8:30 AM through 5:30 PM).”

Defendants note that the lease states that payment shall be made by wire/electronic transfer, and the three-day notice did not indicate that the unpaid rent could be paid under that previously established electronic funds transfer procedure. (Notice of Motion at p. 5; see Motion at pp. 4-5; see also Complaint, Ex. 1 at p. 1, ¶ 3(D).) Nowhere does the notice state that payment will be accepted if made by the only method indicated in and permitted by the lease. (See Complaint, Ex. 1 at p. 1, ¶ 3(D).)

However, dicta in Foster v. Williams (2014) 229 Cal.App.4th Supp. 9 (Foster) suggests that the notice requirements under section 1161, subdivision (2) present alternatives, and it may not be required to state information for multiple methods of payment. The Foster court noted that “the notice must state one of the following” methods of payment. (Id. at pp. 16-17.) This interpretation of section 1161, subdivision (2) is further supported by the court’s statement that “[i]f the third alternative is used, there is no need to also state the information in the first alternative,” and other references to the “alternative” that is used. (Id. at pp. 17-18.) Therefore, inversely, if the first alternative is used, then there is no need to also state the information in the third alternative, even though electronic payment is the only acceptable payment method according to the lease.

The notice here contains all of the information required by the first alternative. Accordingly, the motion is denied on this ground.

Defendants argue that the declaration of service is invalid because it fails to state that the declarant is over age 18 and not a party to the action. (Notice of Motion at p. 6; Motion at p. 3.)

The Complaint states that the three-day notice was served by posting a copy at the premises on August 8, 2022. (Complaint at p. 3, ¶ 10.) The declaration of service for the notice reflects service by “[a]ffixing a copy to the front door of the premises and by sending a copy in a sealed envelope by first class mail, postage prepaid, addressed to the renter(s) at the premises, in as much as the renter(s) actual place of residence or business cannot be ascertained and/or a person of suitable age and discretion cannot be found at the renter(s) premises or business.” (Complaint, Ex. 2.) Declarant Keith Williams checked the box indicating, “I am personally aware of these facts and I am competent to testify thereto as a witness. I declare, under penalty of perjury, that the foregoing is true and correct . . .” and signed the declaration. Although he did not state that he is not a party to this case, the Court takes judicial notice of the fact that he is not a plaintiff, defendant, or other party. Defendants have not shown that service of the three-day notice was improper. (See Code Civ. Proc., § 1162, subd. (a)(3) [service by affixing in a conspicuous place on the property and mailing a copy].)

Defendants also argue that Plaintiffs served multiple notices and were required to serve separate declarations. (Notice of Motion at p. 6; Motion at p. 4.) The Complaint is based on the August 8, 2022 three-day notice, so no proof of service of prior notices is required.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court