Is a Three-Day Notice Required to Cite the Statutory Provisions Allegedly Violated?

This issue was decided in the recent California appellate case of Gonzalez v. Bolanos which was an appeal by defendant Maria Bolanos from the judgment entered in favor of plaintiff Ariel Gonzalez, following an unlawful detainer jury trial prosecuted on the theory that defendant failed to comply with a three-day notice to perform covenants or quit.

Defendant contended the three-day notice was facially defective in various respects - the alleged breach of lease covenant was immaterial as a matter of law due to plaintiff suffering no actual injury, and there is no substantial evidence to support the jury’s special verdict finding that the breach of lease was material.

Additionally, defendant challenged the sufficiency of the evidence with respect to her affirmative defense of waiver, and complained the court committed prejudicial instructional error.

The appellate court affirmed the judgment.

The complaint alleged that plaintiff was the owner of the premises and that defendant became a tenant pursuant to a written lease agreement which required her to pay rent of $926 per month.

The property is subject to the Los Angeles Rent Stabilization Ordinance (LARSO).

Plaintiff caused defendants to be served with a three-day notice to perform covenants or quit the premises, and defendant did not comply after expiration of the notice period.

The three-day notice to perform covenants or quit the premises stated: “You are hereby notified that pursuant to the rental contract or law under which you hold possession of the described premises, there is a violation or breach of said agreement or law in the following manner: Pursuant to the terms of the lease agreement the tenant shall not violate any City Law. On  August 16, . . . the [LAHD] issued a Notice and Order to Comply. The order stated that you were in violation of a City law by storing personal property in your garage and that you were blocking the pathway to and from the garage. Within the 3 days stated herein, you must remove your personal property storage from the garage, as it is only for the parking of a vehicle. In addition, within the 3 days stated herein you must remove your vehicles so that it is not blocking the pathway. The pathway must remain free and clear. Witness: Jose Zepeda and Ariel Gonzalez.”

Defendant’s answer denied each adverse allegation in the complaint and asserted multiple affirmative defenses, including no material breach of covenant, waiver, and violations of LARSO.

The cause proceeded to a trial by jury. Plaintiff introduced into evidence the lease, Notice and Order to comply, three-day notice, and photographs depicting the garage and a pathway to and from the garage.

The defense introduced into evidence photographs depicting the front of the house, a cement mixer, the garage, and the driveway.

The property was registered with the LAHD, and plaintiff posted the 2023 LARSO certificate and related tenant notices on the property

Zepeda is a housing inspector for the LAHD who investigated the conditions underlying this case.

After the LAHD received a complaint from an unknown source concerning vehicles blocking the shared driveway, Zepeda reviewed the complaint and visited the property.. Zepeda observed several city ordinance violations, including oil stains on the driveway, a cementer mixer and tools stored in the exterior common areas, and a significant amount of personal property being improperly stored on top of structural wooden two-by-four planks on the right side of the garage. The wood was warping due to the weight of the items being stored on it.

This condition violated a city ordinance and posed a safety risk as the wood may eventually cave in, and the structure could collapse.

According to Zepeda, a shared driveway for a multi-unit residential property must remain clear to allow for escape in case of an emergency, and to allow emergency personnel to access the property.

Zepeda spoke with plaintiff and defendant about the violations he observed. Defendant told Zepeda that the personal property being stored in the garage belonged to her. Zepeda advised defendant the conditions violated the city code and explained the garage shelving wasn’t designed to carry the weight that was up there because the supports were spaced out too far and they weren’t designed to carry any load.

Zepeda issued a Notice and Order to Comply, that listed the ordinance violations and demanded removal of oil stains and open storage in the driveway, the cars blocking the driveway, trash cans being used for open storage, and improper storage of personal property in the garage.

Defendant did not move the cars from the driveway or remove the identified personal property from the garage.

Zepeda reinspected the property and there were no cars in the driveway at the time, but the remaining conditions were not corrected. Zepeda testified the LAHD “hold[s] the owners responsible” for ordinance violations, and the department does not cite tenants.

Plaintiff hired counsel to serve the three-day notice to perform covenants or quit the premises.

Plaintiff accepted rent payments from defendant at a time when the cars were parked on the driveway and the personal property was being improperly stored in the garage.

Plaintiff never communicated to defendant that she was permitted to park cars on the driveway or to store personal property on the structural planks in the garage, and she told defendant the cars had to be moved when she accepted a rent payment.

After the court responded to a jury inquiry, the jury issued the following special verdict findings: plaintiff owned the property; defendant violated the lease as alleged in the three-day notice; the violation was a substantial breach of an important obligation under the lease; plaintiff accepted at least one rent payment from defendant after receipt of the Notice and Order to Comply, while clearly and continuously objecting to the violations; plaintiff served defendant with a LAHD statement of registration of rental units before October 6; plaintiff properly served defendant with the three-day notice; and defendant did not cure the breach within three days after service of the notice.

Defendant claimed the three-day notice to perform or quit was defective, inaccurate and confusing, and the lease lacks anything that could be reasonably construed as restricting the use of the garage for storage or prohibiting parking in the driveway.

To succeed on a cause of action for unlawful detainer, the lessor must plead and prove at least one of the enumerated circumstances set forth in Code of Civil Procedure section 1161 eq. seq.

As applicable to this case, a tenant is guilty of unlawful detainer by continuing in possession, after failing to perform a condition or covenant of the lease, following service of written notice of at least three days demanding the performance of such condition or covenant. (§ 1161, subd. (3).) The lessor must strictly comply with all applicable notice requirements.

At minimum this requires allegations that the defendant was served with a written notice, specifying the alleged breach, and unequivocally demanding possession within three days of service of the notice.

Where the condition or covenant allegedly violated is capable of being performed, the notice must give the tenant the alternative of performing or quitting possession.

In any case, the notice must advise the tenant of the alleged breach. If it does not do so, the tenant cannot know whether to comply with the notice to quit or remain in possession and contest the landlord’s allegations.

LARSO imposes additional restrictions. To recover possession of a rental unit when a lessee has violated a lawful covenant of the tenancy, the lessor “shall serve on the tenant a written notice setting forth the reasons for the termination . . . [which] shall be as described in . . . Code of Civil Procedure Section[] 1161” (§ 151.09, subd. (C)), and “the termination notice must set forth specific facts to permit a determination of the date, place, witnesses and circumstances concerning the eviction reason” (id., subd. (C)(1)).

In the case, the three-day notice specified defendant breached section 3 of the lease which prohibited her violation of any city ordinance in or about the premises.

Citing the Notice and Order to Comply, the three-day notice averred that defendant violated a city ordinance, and was therefore in breach of the lease, by “storing personal property in your garage” and “blocking the pathway to and from the garage.”

The notice was sufficient to clearly notify defendant of the alleged breach of covenant and it identified the witnesses to the alleged violations.

The notice was not required to cite the statutory provisions allegedly violated by defendant—only the facts underlying the alleged breaches.

No particular words are prescribed, and no special form is indispensable.

The notice also specified what actions defendant was expected to take to cure the alleged violations and retain possession—“you must remove your personal property storage from the garage, as it is only for the parking of a vehicle” and “you must remove your vehicles so that it is not blocking the pathway. The pathway must remain free and clear.”

A reasonable person would understand the lease violations being alleged in the notice. The instructions to cure the alleged breaches were sufficiently clear and unequivocal such that defendant had notice she was facing imminent eviction if she refused to cure the violations.

Defendant maintained there is no substantial evidence to support the special verdict finding that she violated any city ordinance, because it was undisputed that plaintiff was the party who was cited by the LAHD for the violations.

It was undisputed that the Notice and Order to Comply, identified violations of sections 12.21(A)(1)(a) and 91.8104. Section 12.21(A)(1)(a) provides, “[n]o building or structure shall be . . . maintained, nor shall any building, structure, or land be used . . . for any use other than is permitted in the zone in which such building, structure, or land is located . . . .” Section 91.8104 provides: “Every existing building, structure, or portion thereof shall be maintained in a safe and sanitary condition and good repair. The premises of every building or structure shall be maintained in good repair and free from . . . debris, rubbish, garbage, trash, . . . or other similar material.”

Citing section 161.701.2, defendant reasoeds that, because LAHD had the authority, but did not cite her for the ordinance violations, she was necessarily not the party who violated thecity ordinance.

Defendant’s analysis was unavailing. The Municipal Code makes it “unlawful for any person to violate any provision or fail to comply with any of the requirements of this Code.” (§ 11.00, subd. (m), italics added.) The term “any person” broadly includes a tenant.

There is no legal authority or provision in the lease requiring defendant to be cited or charged with a violation as a condition precedent to constitute a breach of the clause in the lease. (See,e.g., § 151.09(A)(11) [lessor may file unlawful detainer action to recover possession of a unit in order to comply with a notice to comply issued by a governmental agency].)

Defendant was the proximate cause for the violation—but for defendant’s actions or failure to act, plaintiff would not have received the Notice and Order to Comply.

Thus, although defendant was not cited by the LAHD, there is substantial evidence to support the jury’s determination that defendant breached the lease by “violat[ing] any city ordinance . . . in or about said premises.”

A lease may be terminated only for a substantial breach thereof, and not for a mere technical or trivial violation.

The law sensibly recognizes that every instance of noncompliance with Section 161.701.2 authorizes the LAHD to issue an order to comply and to pursue enforcement remedies against any tenant determined to have violated Section 91.8102.2 or Civil Code Section 1941.2.

Section 91.8102.2 makes it unlawful for a tenant of a dwelling unit to fail to keep the dwelling unit free from an accumulation of debris, filth, rubbish and garbage.

Civil Code section 1941.2 excuses a lessor from the duty to repair a dilapidation if the tenant is in substantial violation of certain obligations and the tenant’s violation substantially contributes to the existence of the dilapidation or interferes with the lessor’s obligation to repair.

California courts allow termination only if the breach can be classified as “material,” “substantial,” or “total”.

A condition in a contract involving a forfeiture is strictly interpreted against the party for whose benefit it is created. (Civ. Code, § 1442.)

The question of whether a breach of a lease obligation is a material breach is ordinarily a question of fact, but if reasonable minds cannot differ on the issue of materiality, then the issue is resolved as a matter of law.

It would be absurd if the lease was interpreted in a manner that prevented plaintiff from curing the Notice and Order to Comply and instead required plaintiff to wait until she was assessed penalties or incurred civil liability, before serving a notice to cure the violation or quit the premises. (Civ. Code, § 1638 (favoring interpretation of a contract manner that avoids absurd results).)

LESSONS:

1.         The landlord should always use a written lease that specifies the terms and conditions of the tenancy.

2.         At minimum the unlawful detainer complaint must include allegations that the defendant was served with a written notice specifying the alleged breach, and unequivocally demanding possession within three days of service of the notice.

3.         The 3-day notice is not required to cite the statutory provisions allegedly violated by defendant—only the facts underlying the alleged breaches.

4.         Where the condition or covenant allegedly violated is capable of being performed, the notice must give the tenant the alternative of performing or quitting possession.

5.         LARSO imposes additional restrictions. To recover possession of a rental unit when a lessee has violated a lawful covenant of the tenancy, the lessor shall serve on the tenant a written notice setting forth the reasons for the termination which shall be as described in Code of Civil Procedure Section 1161, and the termination notice must set forth specific facts to permit a determination of the date, place, witnesses and circumstances concerning the eviction reason. (§ 151.09, subd. (C).