Is an Unlawful Detainer Action Dependent Upon the Notice to Pay or Quit?
The importance of the notice that is the basis of an unlawful detainer action in California was the subject of the recent appellate decision in Heffesse v. Guevera.
Plaintiff and appellant Cyril Heffesse appealed the judgment entered in favor of defendants Karina Yamileth Portillo Guevara following the trial court’s granting of a motion for judgment on the pleadings.
Plaintiff contended the trial court erred in determining that the notice to pay rent or quit overstated the amount of rent due by including the Systematic Code Enforcement Program (SCEP) fees.
Plaintiff also contended the court erred in denying him leave to amend the complaint.
The appellate court disagreed and affirmed the judgment.
On November 14, 2023, plaintiff filed an unlawful detainer complaint against defendants based on a three-day notice to pay or quit.
Plaintiff alleged he rented to defendants the premises located at 9639 1/2 S. Hoover St., in Los Angeles, pursuant to a written lease agreement; defendants rented the premises at a rental rate of $1,550.00 per month payable on the first of the month; a copy of the notice was served on defendants on October 6, 2023; and defendants did not comply with the notice.
Plaintiff sought $3,132.64 in past due rent, possession of the premises, damages in the amount of $51.66 per day, forfeiture of the agreement, and reasonable attorney fees and costs.
On March 27, 2024, defendants filed a motion for summary judgment on the basis that the three-day notice was “fatally defective” arguing plaintiff’s notice overstated the rental amount due because it demanded $1,554.44 per month for September and October 2023 instead of $1,550 per month as noted in the complaint, and defendants had made payment for August 2023 which plaintiff did not account for in the notice.
On March 28, 2024, the matter was called for non-jury trial. Plaintiff’s counsel asserted that whether the notice overstated the amount due was an issue for a trier of fact to decide.
Immediately thereafter, defense counsel orally moved for a judgment on the pleadings because “on the face of the complaint” plaintiff stated the rental amount per month was $1,550, yet the notice demanded payments in the amount of $1,554.44 per month.
Plaintiff’s counsel stated that she had “the lease ... agreement in front of [her], it’s for $1,550 and $4 of SCEP fees. So we are demanding $1554.44 for the months of September and October.”
The court indicated that it was unsure whether landlords are allowed to include SCEP fees as rent in the three-day notice as opposed to a separate failure to comply with terms of the lease to pay those amounts.
Plaintiff’s counsel argued the SCEP fees were “always permitted” to be included as “part of the rent.”
Defense counsel countered the SCEP fees are “additional fees, they are not rent fees but instead are the same as late charges or other fees and therefore they cannot be included in a notice.
The court took the matter under submission.
The court issued its ruling later that day, concluding a SCEP fee is not “rent” under LAMC (Los Angeles Municipal Code) [section] 151.02 and cannot be demanded in a notice to pay rent or quit, absent a separate agreement between the parties to treat the fee as rent.
Plaintiff did not assert the existence of or presented evidence of any such separate agreement here, and so the Court found that the Notice was overstated and thus invalid on its face.
The court entered judgment in favor of defendants and filed a notice of entry of judgment on the same day.
Plaintiff filed a timely appeal of the judgment.
In his opening brief, plaintiff contends SCEP fees are a “rental surcharge” under section 151.05.1 and thus are “an additional amount that may be added to the rent.”
The appellate court disagreed.
Under the Los Angeles Rent Stabilization Ordinance (“LARSO”), “rent” is defined as “[t]he consideration, including any bonus, benefits or gratuity, demanded or received by a landlord for or in connection with the use or occupancy of a rental unit, including but not limited to monies demanded or paid for the following: meals where required by the landlord as a condition of the tenancy; parking; furnishings; other housing services of any kind; subletting; or security deposits.” (§ 151.02.)
Courts have concluded that there is a differentiation between “‘rent’ in the form of regular periodic payment for the occupancy and other duties owed to the landlord.
The appellate court concluded that that differentiation results in “rent” for purpose of the time limitation of Code of Civil Procedure section 1161, referring only to the periodic payment which the parties have themselves labeled as “rent” and not to other obligations, even though involving the payment of money.
Section 151.05 specifically governs rental unit registration renewal fees and related surcharges, and is aptly titled “REGISTRATION, NOTIFICATION OF TENANTS, POSTING OF NOTICE AND PAYMENT OF FEES.” There is no reference to or mention of SCEP fees in section 151.05.
The rules governing the SCEP fees are provided in section 151.05.1, a completely different section of LAMC, which is titled “PASSTHROUGH OF SURCHARGE FOR THE SYSTEMATIC CODE ENFORCEMENT FEE.”
The statutory language is clear. Under LARSO, a landlord may bring an eviction action against a tenant for the tenant’s failure to pay rent to which the landlord is entitled, which includes the rental unit registration renewal fees and related surcharges due under section 151.05, subsection (F).
Not only is the SCEP fee not listed as an amount due under section 151.05, subsection (F), the legislative branch of the City of Los Angeles took care to address it in a separate and distinct section—section 151.05.1.
When one part of a statute contains a term or provision, the omission of that term or provision from another part of the statute indicates the Legislature intended to convey a different meaning.
A court may not rewrite a statute, either by inserting or omitting language, to make it conform to a presumed intent that is not expressed.
If there is no ambiguity, then the appellate court presumes the lawmakers meant what they said, and the plain meaning of the language governs.
It is a cardinal rule of statutory construction that in attempting to ascertain the legislative intention, effect should be given as often as possible to the statute as a whole and to every word and clause, thereby leaving no part of the provision useless or deprived of meaning.
Plaintiff cited Bawa v. Terhune in support of his position that SCEP fees can be included with and considered rent. Plaintiff’s reliance was misplaced.
As plaintiff noted in his opening brief, Bawa held that a trivial breach (i.e., de minimus underpayment of rent) is insufficient to support an unlawful detainer action.
While the plaintiff in Bawa did include the SCEP fee in the “unpaid and delinquent rent” total included in the three-day notice, whether the SCEP fees could be categorized as rent pursuant to LARSO was not at issue before the Bawa court; nor did the court consider it.
It is axiomatic that a decision does not stand for a proposition not considered by the court.
The appellate court held that under the LARSO statute, the SCEP fee is not considered rent.
Accordingly, a tenant’s failure to pay the SCEP fee does not constitute a ground upon which a landlord may initiate an unlawful detainer action.
A three-day notice to pay rent or vacate the premises issued pursuant to Code of Civil Procedure section 1161, subdivision 2 must state the “exact sum due.”
A notice that seeks rent in excess of the amount due is invalid and will not support an unlawful detainer action.
A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action.
Because of the summary nature of an unlawful detainer action, a notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements.
A judgment must be reversed when it is based on a three-day notice which lacks the information required by Code of Civil Procedure, section 1161, subdivision 2.
Here, the record reflected that the rent amount was $1,550 per month.
The complaint indicates that defendant agreed to pay monthly rent of $1,550.
The only document that lists a different rent amount is the three-day notice, which reflects the amount due for each delinquent month as $1,554.44.
Plaintiff did not dispute that the $1,554.44 figure included the SCEP fee.
Given the analysis above, the SCEP fee is not rent, and given plaintiff’s acknowledgement that the amount sought on the three-day notice included the SCEP fee, the notice overstated the amount due and could not support an unlawful detainer action.
Moreover, plaintiff’s demand of payment of two different delinquent amounts based on a monthly rent amount of $1,550 listed in the complaint and the amount of $1,554.44 listed in the three-day notice, created precisely the type of ambiguity that the legislature intended to avoid in amending the unlawful detainer statutes.
Taken together, discrepancies result in the ambiguity and confusion that the amendment to Code of Civil Procedure, section 1161, subdivision] (2) endeavored to avoid.
As a result, a notice that fails to strictly comply with section 1161(2) and cannot support an unlawful detainer action.
Because the three-day notice did not strictly comply with the notice requirements of the unlawful detainer statutes, which were intended to prevent tenant confusion by setting forth clear rules regarding payment of rent, the notice was fatally defective.
Plaintiff’s contention that the trial court erred in denying leave to amend lacked merit.
Under Code of Civil Procedure, section 472c, subdivision (a), the general rule is that when any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.
Here, nothing in the record reflected that plaintiff was precluded from seeking leave to amend the complaint. The appellate court therefore concluded that plaintiff elected not to amend the complaint, and had forfeited his claim of error on that ground.
Moreover, even if the claim is not forfeited, there was no abuse of discretion.
Plaintiff’s failure to strictly adhere to the statutorily-mandated notice requirements made the notice “invalid on its face” as it is well settled that a defective three-day notice cannot support an unlawful detainer action.
Due to the summary nature of such an action, a three-day notice is valid only if the landlord strictly complies with the provisions of Code of Civil Procedure, section 1161, subdivision 2.
LESSONS:
1. A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action.
2. A three-day notice to pay rent or vacate the premises issued pursuant to Code of Civil Procedure section 1161, subdivision 2 must state the “exact sum due.”
3. A notice that seeks rent in excess of the amount due is invalid, and will not support an unlawful detainer action.
4. Failure to strictly adhere to the statutorily-mandated notice requirements makes the notice “invalid on its face” as it is well settled that a defective three-day notice cannot support an unlawful detainer action.
5. The best practice in preparing a three-day notice to pay or quit is to only include the amount of the unpaid monthly rent, and avoid adding any other claims or fee.