Sierra Property Group Inc vs Teri Chavez et al

Case Number

23CV05306

Case Type

Hearing Date / Time

Mon, 01/22/2024 - 10:00

Nature of Proceedings

Demurrer

Tentative Ruling

Sierra Property Group, Inc. v. Teri Chavez

Case No. 23CV05306

           

Hearing Date: January 22, 2024                                            

HEARING:              Defendant’s Demurrer to Plaintiff’s Complaint

ATTORNEYS:        For Plaintiff  Sierra Property Group, Inc.: Lacy L. Taylor

                                    For Defendant Teri Chavez: Alexander Entrekin

                                   

TENTATIVE RULING:

The demurrer to plaintiff’s complaint is sustained with leave to amend. Plaintiff shall file a first amended complaint, if any, on or before January 30, 2024.

Background:

This action was commenced on December 1, 2023, by the filing of the complaint for unlawful detainer by Sierra Property Group, Inc. (“Plaintiff”) against Teri Chavez (“Defendant”). The complaint alleges that defendant has been renting premises located at 818 Salsipuedes St., Unit D, Santa Barbara, within the city limits of Santa Barbara, since February 18, 2011, pursuant to a written month-to-month lease, with monthly rent of $2,090.00. (Complaint, ¶¶ 3, 6.) The lease was amended on October 28, 2022, becoming effective January 1, 2023, renewing the lease as a continued month-to-month lease. (Id. at ¶ 6, subd. (d).) The attached amended lease is unsigned. The tenancy is subject to the Tenant Protection Act of 2019. (Id. at ¶ 7.) Defendant was served with a 90-day notice to terminate tenancy due to nonpayment of rent. (Id. at ¶ 9 & Exh. 2.)

On December 15, 2023, defendant filed the present general demurrer to the complaint on the grounds that the complaint does not state facts sufficient to constitute a cause of action under Code of Civil Procedure section 430.10 subdivision (e).

Plaintiff opposes the demurrer.

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.)

“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.)

            Code of Civil Procedure section 1161, subdivision 2

Defendant argues that plaintiff’s complaint is subject to demurrer for failure to comply with Code of Civil Procedure section 1161, subdivision 2. That section provides, in pertinent part:

“When the tenant continues in possession, in person or by subtenant, without the permission of the landlord, or the successor in estate of the landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring its payment, stating the amount that 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 (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure, or possession of the property, shall have been served upon the tenant and if there is a subtenant in actual occupation of the premises, also upon the subtenant.”

Defendant argues that the notice of termination lists nonpayment of rent as the reason for eviction but does not include the amount of rent due or any information to permit the tenant to cure the default for nonpayment.

In opposition, plaintiff argues that defendant was served with a 3-day notice to perform conditions or covenants or quit because defendant was smoking in the apartment in violation of the terms of her lease. Plaintiff further argues that on July 13, 2023, plaintiff served defendant with a -3-day notice to pay rent or quit and that defendant failed to pay the rent. Additionally, plaintiff argues that plaintiff served defendant with a 30-day notice to pay rent or quit and a 90-day notice to vacate on July 20, 2023. Plaintiff then argues that plaintiff had the right to terminate defendant’s tenancy. Then, despite indicating the contrary in the complaint, plaintiff argues that the Tenant Protection Act and local ordinance 5979 are inapplicable because defendant’s tenancy is subject to an agreement that provides housing subsidies for people in need of affordable housing.

Plaintiff’s argument is flawed, and the points raised by defendant in the demurrer are completely ignored.

The complaint is incomplete and contradictory. For example, and as noted above, the complaint states that the tenancy is subject to the Tenant Protection Act of 2019. (Complaint, ¶ 7.) However, in the attached 90-day notice to vacate, plaintiff represents that the tenancy is exempt from the protections of the Tenant Protection Act of 2019. The sole reason listed for the eviction is non-payment of rent. There is no mention of a breach of violation of the terms of the lease due to smoking in the apartment, or any other reason given. The 90-day notice fails to provide the amount of past due rent or the required contact information for the person to whom rent should be paid.

Because the notice, and complaint, as presented to the court, do not comply with Code of Civil Procedure section 1161, subdivision 2, and the unlawful detainer statutes are to be strictly construed, the demurrer must be sustained.

Because plaintiff has implied that there exist additional documents that were served on defendant, there is a reasonable probability that the complaint is capable of amendment to correct the deficiencies. Plaintiff will be given leave to amend.