Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Barbara Kvistad vs Alexandra Van Antwerp
Case No: 19CV05329
Hearing Date: Fri Nov 22, 2019 9:30

Nature of Proceedings: Demurrer

TENTATIVE RULING: For the reasons articulated below, the demurrer is sustained, without leave to amend.

A verified unlawful detainer complaint was filed October 4, 2019. It alleges that plaintiff, as owner of premises at 4436 La Tierra Lane in Carpinteria, entered into a written agreement with defendant on 4/22/16 for a 12 month tenancy, with rent of $3,600 payable monthly on the first of the month. The agreement is attached. Defendant was served with a 3-day notice to pay rent or quit which included an election of forfeiture, by personal service, on 9/20/19. The period expired on 9/24/19. The notice is attached. At the time the 3-day notice was served, the amount of rent due was $58,500. The fair rental value of the premises is $120/day.

The Agreement provides for a 12-month tenancy, ending on May 31, 2017, with creation of a month-to-month tenancy thereafter should the landlord accept rent from the tenant after that date. It provided for monthly rent of $3,600/month, payable on the first of each month, but provided for the tenant to receive a $100 discount on the monthly rent if the rent amount is received by the landlord prior to the due date. The agreement provided that rent shall be paid by auto-deposit into a specified account held by the landlord.

The 3-Day Notice to Pay Rent or Quit states that the $58,500.00 sought represents rent due and unpaid for the months of April 2018 through September 2019, plus late fees.

Defendant has demurred to the complaint, contending that the 3-day Notice is defective, in that it includes rent owed more than one year prior to the date the Notice was served. Plaintiff’s Notice includes rent due April–September 2018, which is more than one year prior to the served of the notice on 9/20/19. Further, defendant contends that the Notice does not state how rent should be paid, and if personally, the days and hours for payment, as required by Code of Civil Procedure section 1161.

Plaintiff has not opposed the demurrer.

ANALYSIS: The demurrer is sustained, without leave to amend.

The 3-day Notice to Pay Rent or Quit notice was fatally deficient in seeking rent due and owing for a period longer than 1 year prior to the service of the notice. Code of Civil Procedure section 1161(2) requires that the three-day nonpayment of rent notice be served on the tenant at any time within one year after the rent becomes due. Such a notice is invalid, and will not support an unlawful detainer, if it demands rent due for more than one year prior to service of the notice. (See Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697-698.) This is because unlawful detainer is a summary proceeding. If the landlord waits over a year to sue for unpaid rent, he or she is limited to collecting that rent in a separate breach of contract action. (Levitz Furniture Co. of the Pac., Inc. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4th 1035, 1042.) Only rent due and owing within a year of serving the notice may be collected in the summary unlawful detainer proceeding.

Additionally, defendant is correct that the 3-day notice was also defective in its complete failure to address the manner in which the rent due was to be paid. Pursuant to Code of Civil Procedure section 1161(2), the notice must state the name, telephone number, and address of the person to whom the rent payment shall be made and, if an electronic funds transfer procedure has been previously established, must state that payment may be made pursuant to that procedure. While the notice properly stated the name, telephone number, and address of the person to whom the rent must be paid, i.e., here, the landlord, it did not contain the required statement that payment could properly be made pursuant to the electronic transfer procedure that existed between the parties. The Notice was not defective, however, in its failure to state usual days and hours the person would be available to receive payment; that is only required if the notice provides that the payment may be made personally, which this notice did not.

In any event, the 3-Day Notice to Pay Rent or Quit was fatally defective in these respects, and cannot support an unlawful detainer action. As a result, this Court has no alternative but to sustain the demurrer, without leave to amend.

Landlord is free to serve a compliant 3-Day Notice upon the tenant, and proceed with a subsequent unlawful detainer action, and obtain possession of the premises in that manner. Landlord is also free to seek the full amount of rent owed in a breach of contract action against the tenant.