Tentative Ruling

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

CIVIL LAW & MOTION
Empresa Real Alta California LLC vs Kevin L Brun
Case No: 20CV00181
Hearing Date: Fri Feb 14, 2020 9:30

Nature of Proceedings: Demurrer

TENTATIVE RULING: The demurrer is overruled, and defendant is directed to file an answer within 5 calendar days.

Complaint: This residential unlawful detainer complaint was filed on January 9, 2020. It alleges that defendant is in possession of property owned by plaintiff at 28 West Pedregosa Street, Apt. 3, in Santa Barbara, pursuant to a written agreement providing for month-to-month occupancy, and under which defendant agreed to pay monthly rent of $1,175.00. The agreement was entered into with plaintiff’s predecessor in interest. Defendant was served with a 60-day notice to quit on October 22, 2019, by posting a copy on the premises and mailing a copy to defendant, because no person of suitable age or discretion could be found there. The notice included an election of forfeiture. The 60-day period expired on December 23, 2019, and defendant failed to comply with the requirements of the notice by that date. It alleges that defendant’s continued possession is malicious. Plaintiff seeks possession, forfeiture of the agreement, damages at $66.76/day for each day after 12/24/19 that defendant remains in possession through entry of judgment, and statutory damages up to $600 for defendant’s continued malicious possession, pursuant to Code of Civil Procedure section 1174(b).

The 60-Day Notice to Move Out is attached to the complaint. The notice terminated the tenancy and rental agreement under which defendant Brun occupied the premises, as of 60 days after service of the notice, or December 31, 2019, whichever is later. It notified defendant that he was required to vacate and move his belongings by that time period, and that the Notice, made pursuant to Civil Code section 1946, required no specific reason. It advised defendant that his failure to vacate within the time period would result in proceedings to recover possession of the premises, attorney fees, court costs and penalty damages of $600 under Code of Civil Procedure section 1174. It further advised him of his right to reclaim abandoned personal property left at the address. It was signed by an unspecified representative of the owner (signature indecipherable). Proof of service of the Notice is also attached.

Demurrer: Defendant has demurred to the complaint, contending that it does not state facts sufficient to constitute a cause of action, because plaintiff did not offer defendant the “one-session conciliation meeting with the landlord” required by Santa Barbara Ordinance No. 5885, and this failure is a defense to any legal action brought by the landlord to recover possession of the rental unit, under the terms of the ordinance.

The demurrer argues that since unlawful detainer actions are summary proceedings, its requirements must be strictly construed, and further that a termination notice that does not comply with the requirements for unlawful detainers cannot serve as a basis for a plaintiff’s action, citing Turney v. Collins (1941) 48 Cal.App.2d 381, 392.)

Plaintiff has not filed opposition to the demurrer.

ANALYSIS: The demurrer is overruled, and defendant is directed to file an answer within 5 calendar days. While failure to provide the one-session conciliation meeting may be a defense to the unlawful detainer action, that failure is not apparent from face of the complaint or its attachments, and is therefore not cognizable on demurrer.

The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)

The City of Santa Barbara recently enacted Ordinance No. 5885, which added new Santa Barbara Municipal Code sections 25.40.010, et seq., as a measure to protect tenants. It noted that, due to the housing shortage in the City, tenants had less security in their housing choices as a result of rapid rent increases, or eviction without cause. The scheme of the ordinance generally requires landlords of rental properties located within the City of Santa Barbara to offer their tenants year-long leases during which rents cannot be increased, and contains requirements regarding both the renewal and non-renewal of such leases.

Specifically, section 26.40.010 provides, in relevant part:

“F. NON-RENEWAL OF LEASES. If the landlord does not wish to continue the rental relationship, then at the time the landlord delivers notice of such termination, the tenant shall be offered a one-session conciliation meeting with the landlord using the Santa Barbara Rental Housing Mediation Board, if available, or a qualified mediator of mutual choice and provided at mutual expense. The results of any conciliation meeting shall not be binding unless agreed to by the landlord and tenant. A tenant need not participate in a conciliation meeting. The remedies available under this Chapter shall not be affected by a tenant’s inability or refusal to participate in conciliation.” [Emphasis added.]

The provisions do not apply to rental units which are rented on the effective date of the Ordinance, provided that (a) if the unit is rented subject to a written lease, the ordinance will apply when the lease expires; and (b) if the unit is rented without a written lease, the landlord must offer a written lease to the tenant under the provisions of the ordinance, within 90 days after the effective date of the ordinance. (SBMC § 26.40.010, subd. (G)(1)(a) and (b).) There are other exclusions related to owner-occupied units, subleased units, units where tenancy is a condition of or consideration for employment under a written contract, and lawfully operated vacation rentals. (SBMC § 26.40.010, subd. (G) (2)-(5).)

Section 26.40.020, provides further, in relevant part:

“A. DEFENSE TO ACTION TO RECOVER POSSESSION. Failure of a landlord to comply with any of the provisions of this Chapter shall provide the tenant, for a period of one year from the date of the failure of the landlord to comply with this Chapter, with a defense in any legal action brought by the landlord to recover possession of the rental unit.”

The complaint alleges that defendant is a tenant of the rental property pursuant to a written agreement providing for month-to-month occupancy. Further, the ordinance, adopted on May 7, 2019, went into effect 30 days later. The ordinance therefore applied to defendant’s tenancy at the time the 60-Day Notice to Move Out was served upon defendant on October 22, 2019. Plaintiff landlord was therefore required to offer defendant a one-session conciliation meeting, (§ 26.40.010, subd. (F).) If the landlord failed to do so, that failure is a defense to the unlawful detainer action for a period of one year. (§ 26.040.020, subd. (A).)

Defendant appears to contend that because the notice the landlord served upon him to terminate the tenancy did not include language offering the conciliation meeting, the notice and, in turn, the complaint, are defective on their face. The Court disagrees. There does not appear to be anything within Ordinance 5885 which requires the offer of the conciliation meeting be reflected within the notice served to terminate the tenancy. Rather, Section 26.40.010(F) requires that the landlord offer the conciliation meeting “at the time the landlord delivers notice of such termination.” The language utilized appears to require that service of the notice and the making of an offer for a conciliation meeting must be accomplished simultaneously, but does not support the construction that the notice itself must either include the offer or reflect that the offer was made. Indeed, under the language of the ordinance, a landlord would be in full compliance it made the offer orally.

As a result, the failure to make the offer in compliance with the requirements of the ordinance would appear to be an affirmative defense to the action, which should be raised in the answer in the same manner as all other unlawful detainer affirmative defenses, unless there is something on the face of the complaint or its attachments that establishes the applicability of the defense. Here, there is nothing on the face of the complaint or its attachments which establishes the factual basis for the defense. For that reason, the Court will overrule the demurrer and order defendant to answer.

If, in fact, the plaintiff landlord actually failed to comply with the provisions of SBMC 26.40.010, et seq., however, it may wish to voluntarily dismiss the unlawful detainer action. If it does not, the matter will proceed to summary judgment motion or trial, wherein if the requirements of the defense are met (i.e., establishment that the property is within the City of Santa Barbara and subject to the terms of the ordinance, and that no offer of a conciliation meeting was made at the time the landlord delivered notice of termination of the tenancy), the action will be dismissed.