Susan F Petrovich vs Manuel Antonio De Jesus Corona et al
Case No: 19CV02458
Hearing Date: Fri Jun 21, 2019 9:30

Nature of Proceedings: Demurrer

TENTATIVE RULING: Defendant’s demurrer to the complaint for unlawful detainer is moot as plaintiff has filed a first amended complaint. Defendant shall respond to the first amended complaint on or before June 26, 2019.

BACKGROUND:

This is an action for unlawful detainer. On August 1, 2017, plaintiff Susan Petrovich, Trustee of the Petrovich Family Trust, entered into an oral agreement with defendant Manuel Antonio De Jesus Corona to lease premises located at 403 E. Anapamu Street, Unit 4, Santa Barbara, California 93101. Defendant agreed to pay rent of $2,595.00 per month, payable on the first of the month. Defendant subsequently defaulted in the payment of rent and on April 10, 2019, plaintiff caused a three-day notice to pay rent or quit to be personally served on defendant. At the time of the three-day notice was served, the amount of rent due was $7,785.00. Defendant failed to cure the default and remains in possession of the premises and on May 9, 2019, plaintiff filed her complaint for unlawful detainer.

Defendant demurs to the unlawful detainer complaint for failure to state a cause of action. Defendant contends that the three-day notice that was served on him was deficient and ineffective as a matter of law.

ANALYSIS:

The grounds for objecting to a complaint by demurrer are set forth in Code of Civil Procedure Section 430.10, which provides, in relevant part:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

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“(e) The pleading does not state facts sufficient to constitute a cause of action.”

Defendant challenges plaintiff’s complaint on the ground that it fails to state a cause of action for unlawful detainer. Code of Civil Procedure Section 1161 is the unlawful detainer statute and provides:

“A tenant of real property . . . is guilty of unlawful detainer:

“2. When he or she continues in possession . . . without the permission of his or her landlord . . . after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days’ notice, in writing, requiring its payment, stating the amount which 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 . . . , shall have been served upon him or her . . . .”

Under California law, Section 1161 is strictly construed and a defective three-day notice cannot support an action for unlawful detainer. Greene v. Superior Court (1975) 51 Cal.App.3d 446, 450; see also, Lamey v. Masciotra (1969) 273 Cal.App.2d 709, 713 (“[A] three-day notice to pay rent or quit . . . is valid and enforceable only if the lessor strictly complies with the specifically described notice conditions.”). Here, defendant contends that plaintiff’s unlawful detainer complaint is deficient because the three-day notice to pay rent or quit fails to state “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,” as required by Section 1161. (Comp., Ex. 2.)

Defendant is correct that plaintiff’s complaint fails to state a cause of action for unlawful detainer because the three-day notice omits essential information regarding the payment of rent. However, on May 28, 2019, plaintiff caused a new three-day notice to be served on plaintiff by substituted service. (FAC, Ex. 3.) The new three-day notice cures all of the deficiencies of the original notice by providing:

WITHIN THREE (3) DAYS AFTER SERVICE OF THIS NOTICE, excluding Saturdays, Sundays, and any judicial holidays, you are required to pay said rent in full or to deliver up possession of said premises to the undersigned in cash or by cashier’s check, at the following address: 1021 Anacapa Street, 2nd Floor, Santa Barbara, California between the hours of 8:30 a.m. and 5:30 p.m., Monday through Friday. You are further notified that the undersigned has elected to, and does hereby, declare the verbal agreement under which you hold the premises to be terminated and forfeited in the event that you fail to pay the rent in full as herein required.”

(FAC, Ex. 2.)

The three-day notice identifies Susan F. Petrovich as the lessor/payee and lists her telephone number as “805-882-1405.” (FAC, Ex. 2.)

Defendant, again, failed to cure the default within the three-day period and remains in possession and on June 6, 2019, plaintiff filed her first amended complaint (“FAC”) for unlawful detainer. Defendant was served with the FAC by mail on June 6, 2019. (Proof of Service, filed 6-6-19.)

The filing of the FAC rendered defendant’s demurrer moot. Accordingly, defendant shall file and serve his response to the FAC on or before June 26, 2019.