David Sullins vs Anastasiya Abdullah

Case Number

23CV04603

Case Type

Hearing Date / Time

Mon, 12/11/2023 - 10:00

Nature of Proceedings

Demurrer

Tentative Ruling

David Sullins v. Anastasiya Abdullah                     

Case No. 23CV04603

           

Hearing Date: December 11, 2023                                         

HEARING:              Defendant’s Demurrer to Plaintiff’s Complaint

ATTORNEYS:        For Plaintiff David Sullins: Robert A. Goodman

                                    For Defendant Anastasiya Abdullah: Justin D. Fox

                                   

TENTATIVE RULING:

The demurrer to plaintiff’s complaint is overruled. Defendant Anastasiya Abdullah shall file and serve her answer to the complaint on or before December 18, 2023.

Background:

This action was commenced on October 18, 2023, by the filing of the complaint for unlawful detainer by plaintiff David Sullins against defendant Anastasiya. The complaint alleges that defendant has been renting premises located at 430 Hot Springs Road, Santa Barbara, CA 93108 (Originally Dubai Room, changed to Old Fashioned Room) since April 2023, for $2,590.00 as a month-to-month tenancy. (Complaint, ¶¶ 3, 6.) The tenancy is subject to the Tenant Protection Act of 2019. (Id. at ¶ 7.) On October 4, 2023, defendant was served with a three-day notice to pay rent or quit, alleging rent due of $2,455.00 (Id. at ¶ 9 & Exh. 2.)

Defendant filed the instant demurrer on November 6, 2023, alleging that there is a complete defense to the action because “insufficient notice has been served upon a tenant, based upon the 30-Day notice requirements of the CARES Act.” (Demurrer, p. 3, 11-25.)

Plaintiff opposed the motion arguing that the complaint states facts sufficient to state a cause of action and that plaintiff need not allege compliance with the CARES Act.

Analysis:

            Standard on Demurrer

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

A demurrer searches for defects in the allegations of the pleading. “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)

“Although a general demurrer does not ordinarily reach affirmative defenses, it “ ‘will lie where the complaint ‘ “has included allegations that clearly disclose some defense or bar to recovery.” ’ ” [Citations.] “ ‘Thus, a demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.’ [Citations.]” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726.)

“It has long been recognized that the unlawful detainer statutes are to be strictly construed and that relief not statutorily authorized may not be given due to the summary nature of the proceedings. The statutory requirements in such proceedings must be followed strictly, otherwise a landlord’s remedy is an ordinary suit for breach of contract with all the delays that remedy normally involves and without restitution of the demised property.” (WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.)

15 United States Code Annotated, section 9058 applies to certain defined covered properties, including certain subsidy programs. Defendant argues that plaintiff participates in the Section 8 Housing Choice Voucher subsidy program and therefore is entitled to 30 days within to vacate rather than the three days contained in the notice. This is, at most, an affirmative defense which is not apparent from the face of the complaint. To determine that defendant has a viable affirmative defense would require the improper consideration of extrinsic evidence and the weighing of evidence. Of note is that defendant does not claim that she himself participates in the voucher program.

The requirements for an unlawful detainer complaint are set forth in Code of Civil Procedure section 1166 as follows: 

 

“(a) The complaint shall: 

 

“(1)      Be verified and include the typed or printed name of the person verifying the complaint. 

 

“(2)      Set forth the facts on which the plaintiff seeks to recover. 

 

“(3)      Describe the premises with reasonable certainty. 

 

“(4)      If the action is based on paragraph (2) of Section 1161, state the amount of rent in default. 

 

“(5)      State specifically the method used to serve the defendant with the notice or notices of termination upon which the complaint is based. This requirement may be satisfied by using and completing all items relating to service of the notice or notices in an appropriate Judicial Council form complaint, or by attaching a proof of service of the notice or notices of termination served on the defendant. 

 

“(b) The complaint may set forth any circumstances of fraud, force, or violence that may have accompanied the alleged forcible entry or forcible or unlawful detainer, and claim damages therefor. 

 

“(c) In an action regarding residential real property based on Section 1161a, the plaintiff shall state in the caption of the complaint “Action based on Code of Civil Procedure Section 1161a.” 

 

“(d)(1) In an action regarding residential property, the plaintiff shall attach to the complaint the following: 

 

“(A)     A copy of the notice or notices of termination served on the defendant upon which the complaint is based. 

“(B)     A copy of any written lease or rental agreement regarding the premises. Any addenda or attachments to the lease or written agreement that form the basis of the complaint shall also be attached. The documents required by this subparagraph are not required to be attached if the complaint alleges any of the following: 

 

“(i)       The lease or rental agreement is oral. 

 

“(ii)      A written lease or rental agreement regarding the premises is not in the possession of the landlord or any agent or employee of the landlord. 

 

“(iii)    An action based solely on subdivision (2) of Section 1161. 

 

“(2) If the plaintiff fails to attach the documents required by this subdivision, the court shall grant leave to amend the complaint for a five-day period in order to include the required attachments. 

 

“(e) Upon filing the complaint, a summons shall be issued thereon.” 

 

Plaintiff has fully complied with Code of Civil Procedure section 1166. And therefore the demurrer is overruled.