Judge William A. Crowfoot, Case Number: 24NNCV00949, Date: 2024-06-10 Tentative Ruling

Judge: William A. Crowfoot, Case: 24NNCV00949, Date: 2024-06-10 Tentative Ruling

This is a commercial unlawful detainer action filed by Park Marino Convalescent Center, Inc. (“Plaintiff”) against San Marino Gardens Wellness Center, LP (“Defendant”) relating to property located at 2585 East Washington Boulevard, Pasadena, California (“Property”). The Property was the subject of a Ground Lease entered into between A.V. Wagner, Marie E. Wagner, Carl W. Hollstein, and Jane A. Hollstein, collectively as Ground Lessor, and M Three Corporation as Ground Lessee. A licensed skilled nursing facility (“Facility”) operates on the Property. On or about March 3, 2009, the lessors’ interests in the Ground Lease was assigned to Park Mario Land Company, L.P. (Compl., Ex. A.)

Plaintiff is the lessee of the Property and owns the buildings, easements and appurtances, all plumbing, heating, lighting, electrical, ventilation and air conditioning systems, and fixtures affixed to the Facility (the “Leased Premises”). On or about August 17, 2011, Plaintiff entered into a sublease with Defendant (“Sublease”) for the Leased Premises. (Compl., Ex. B.)

On April 22, 2024, Defendant filed this demurrer on the grounds that the Complaint fails to state facts sufficient to constitute a cause of action and is uncertain.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

“Because of the summary nature of an unlawful detainer action, a notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements.” (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697 [internal citations omitted].) A notice to perform or quit is governed by section 1161(3) of the Code of Civil Procedure. Section 1161(3) provides, in pertinent part, that a tenant of real property is guilty of unlawful detainer as follows:

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, including any covenant not to assign or sublet, than the one for the payment of rent, and three days’ notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring the performance of those conditions or covenants, or the possession of the property, shall have been served upon the tenant, and if there is a subtenant in actual occupation of the premises, also, upon the subtenant. Within three days, excluding Saturdays and Sundays and other judicial holidays, after the service of the notice, the tenant, or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform the conditions or covenants of the lease or pay the stipulated rent, as the case may be, and thereby save the lease from forfeiture; provided, if the conditions and covenants of the lease, violated by the lessee, cannot afterward be performed, then no notice, as last prescribed herein, need be given to the lessee or the subtenant, demanding the performance of the violated conditions or covenants of the lease.

Defendant argues that the Notice is defective because it does not state that Defendant has “three days’ notice, excluding Saturdays and Sundays and other judicial holidays”, to cure the alleged breach or quit the premises. (Compl., Ex. C, p.2.) Instead, the Notice refers to “3 court days” and states:

[T]his letter shall serve as notice that if the Tenant’s failure to maintain in good condition and repair the roof is not cured within three (3) court days, Tenant’s right to possession of the Premises will be terminated based on Tenant’s defaults under Section 6.1 of the Lease. If within three (3) court days after service of this notice Tenant either (1) fails to cure said breach of the Lease or (2) fails to deliver possession of the Premises to Landlord, Landlord will initiate legal proceedings against Tenant to obtain a judgment to recover possession of the Premises and any other appropriate damages or relief.

In opposition, Plaintiff contends that its Notice is sufficient because “[i]t is undisputed that “court days” means days other than Saturdays, Sundays and other judicial holidays, and the phrase is used frequently with that meaning throughout the Code of Civil Procedure.” Notably, Plaintiff does not cite to any statute or rule defining a “court day”.

The statute establishing the requirements for proper notice in an unlawful detainer refers to the notice period as “three days, excluding Saturdays and Sundays and other judicial holidays” in the first sentence and repeats this phrase in the sentence immediately after, underscoring the importance of this language. While the meaning of a “court day” may be obvious to legal professionals, the fact that this phrase cannot be easily discerned from these cited statutes cuts against adopting it as an adequate substitution for the explicit language in the statute governing notice requirements for unlawful detainer. After all, unlawful detainer statutes are strictly construed, and “every intendment and presumption is against the person seeking to enforce the forfeiture.” (Horton-Howard v. Payton (1919) 44 Cal.App. 108, 112.) In light of this policy of strict compliance, Defendant’s demurrer is sustained.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.) Plaintiff cannot amend the Complaint to cure this defective notice, which is an essential element of an unlawful detainer action. Therefore, the Court does not grant leave to amend.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.