Dario L Pini vs Vincent Ornelas et al
Case No: 18CV03863
Hearing Date: Fri Aug 31, 2018 9:30

Nature of Proceedings: Motion for Summary Judgment

TENTATIVE RULING:

At the hearing on this motion, defendant Cecilia Ornelas shall provide proof of timely service of this August 31, 2018, hearing date. If no proof of service is presented and if there is no appearance by plaintiff’s counsel, then the hearing on this motion will be continued to September 7, 2018, at 9:30 a.m. Because the notice on file with the court appears to show notice for September 7, no further notice will be required. If proof of timely service of this hearing is presented or if there is an appearance by plaintiff’s counsel to argue the merits of this motion, then the court will proceed to hear the merits of this motion. On the merits of the motion, for the reasons set forth herein, unless plaintiff Pini presents admissible evidence showing a triable issue of fact material to the issue of the notice of termination of tenancy, defendant Cecilia Ornelas will be entitled to summary judgment.

Background:

On August 6, 2018, plaintiff Dario L. Pini filed his original complaint in this unlawful detainer action against defendants Cecilia Ornelas and Vincent Ornelas.

The complaint alleges that Pini is the owner of premises located at 5920 Mandarin Drive, Goleta, California (the Premises). (Complaint, ¶¶ 1, 3, 4.) Before January 1, 2018, Pini entered into an at will tenancy with defendants. (Complaint, ¶ 6a.)

On June 18, 2018, Pini served defendants with a 30-day termination of tenancy at will. (Complaint, ¶¶ 7a(6), 7e, 8a & exhibit 2.) The notice alleged in the complaint states: “YOU ARE HEREBY NOTIFIED that effective THIRTY (30) DAYS from the date of service on you of this notice, the at-will tenancy by which you hold possession of the Premises is terminated, at which time you are required to vacate and surrender possession of the Premises without further action by your landlord. If you fail to do so, legal proceedings will be instituted against you to recover possession of the premises as well as damages and costs of suit.” (Complaint, exhibit 2.)

On August 17, 2018, defendants filed their answer to the complaint, generally denying the allegations of the complaint and asserting affirmative defenses. Included in the affirmative defenses are allegations that the 30-day notice is insufficient to terminate the tenancy.

On August 22, 2018, Pini filed a request that trial be set for this matter. On August 23, the court provided notice that trial has been set for September 7.

On August 24, 2018, defendant Cecilia Ornelas filed this motion for summary judgment.

No opposition has yet been filed to this motion.

Analysis:

(1) Notice

The notice for this motion filed with the court contains in the text of the notice a hearing for September 7, 2018. To the right of the caption of the case, the date September 7, 2018, has been struck (overlined) and the date August 31, 2018, put in its place. The court’s calendar has this matter set for August 31, 2018. That date is consistent with the five days’ notice permitted for summary judgment motions in unlawful detainer. (Code Civ. Proc., § 1170.7.) However, because of the ambiguity in the notice, it is unclear whether notice of the August 31, 2018, hearing date was provided to Pini.

Opposition and reply may be made orally at the hearing to a motion for summary judgment in an unlawful detainer action. (Rules of Court, rule 3.1351(b).) At the hearing of this matter, the court will require defendant Cecilia Ornelas to provide proof of timely service (with at least 5 days’ notice) of this hearing on August 31, 2018. If such proof is provided or if Pini appears to argue the merits of this motion, the motion will be heard as scheduled on August 31. If neither event occurs, the court will continue the hearing on this motion to September 7, 2018, at 9:30 a.m., the date and time set forth in the text of the notice of motion.

The court will assume for purposes of the remainder of this analysis that the motion is being heard on its merits.

(2) Summary Judgment

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain a judgment in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.)

“A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

In support of her motion for summary judgment, defendant Cecilia Ornelas has provided evidence that she and defendant Vincent Ornelas have been tenants residing at the Premises for over four years and for which there is a written tenancy agreement. (C. Ornelas decl., ¶¶ 2, 3 & exhibit B.) The written residential rental agreement presented for the Premises is, on its face, between Cecilia Ornelas and Dario Pini, entered into on August 8, 2014. (Id., exhibit B, ¶ 1.)

“A tenant of real property, for a term less than life, or the executor or administrator of his or her estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer: [¶] 1. When he or she continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to him or her; … but in case of a tenancy at will, it must first be terminated by notice, as prescribed in the Civil Code.” (Code Civ. Proc., § 1161, subd. (1).)

The tenancy here is alleged to be a tenancy at will. As provided in section 1161, subdivision (1), the plaintiff has the burden of proof that the tenancy was terminated by notice as provided in the Civil Code.

“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 his or her 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.” (Civ. Code, § 1946.)

“Notwithstanding Section 1946, a hiring of residential 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 his or her intention to terminate the tenancy, as provided in this section.” (Civ. Code, § 1946.1, subd. (a).)

“An owner of a residential dwelling giving notice pursuant to this section shall give notice at least 60 days prior to the proposed date of termination. A tenant giving notice pursuant to this section shall give notice for a period at least as long as the term of the periodic tenancy prior to the proposed date of termination.” (Civ. Code, § 1946.1, subd. (b).)

Defendant Cecilia Ornelas has provided evidence that the Premises constitute a residential dwelling. As alleged in the complaint, the notice is a 30-day (not 60-day) notice and less than 60 days elapsed from the service of the notice to the filing of the complaint. There is thus evidence that the notice alleged in the complaint is insufficient to terminate the tenancy and hence insufficient to support an action for unlawful detainer.

“It is a ‘familiar’ and ‘longstanding’ legal principle that ‘ “[w]hen a proviso … carves an exception out of the body of a statute or contract those who set up such exception must prove it.” ’ [Citations.] Likewise, in California, ‘it has been declared that where the statute has exemptions, exceptions or matters which will avoid the statute the burden is on the claimant to show that he falls within that category.’ [Citations.]” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 23.) For purposes of summary judgment, the initial burden includes negating a statutory exception only where the complaint itself anticipates the statute or defense and contains allegations negating the general application of the statute or defense. (See Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1739-1740.)

“Notwithstanding subdivision (b), an owner of a residential dwelling giving notice pursuant to this section shall give notice at least 30 days prior to the proposed date of termination if any tenant or resident has resided in the dwelling for less than one year.” (Civ. Code, § 1946.1, subd. (c).)

It is at best ambiguous whether the complaint alleges facts coming within the exception to the 60-day notice requirement. Pini alleges a tenancy “before Jan 1, 2018.” (Complaint, ¶ 6a.) This allegation would ordinarily be insufficient to plead the statutory exception to 60-day notice requirement. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [“statutory causes of action must be pleaded with particularity”].) In any case, the moving party here has provided evidence of residing in the dwelling for more than one year, negating the application of this exception. (C. Ornelas decl., ¶ 3.)

The moving party has thus presented evidence that the notice upon which plaintiff Pini relies to terminate the tenancy is legally insufficient to terminate the tenancy and hence is insufficient to support a claim of unlawful detainer under Code of Civil Procedure section 1161, subdivision (1). Defendant Cecilia Ornelas has met her initial burden on summary judgment.

The burden then shifts to Pini to introduce admissible evidence of a triable issue of fact on this point. If Pini fails to do so, defendant Cecilia Ornelas will be entitled to summary judgment.