Filed 9/3/21

CERTIFIED FOR PUBLICATION

APPELLATE DIVISION OF THE SUPERIOR COURT

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

ADAIR LARA, as Trustee, etc.,

Plaintiff and Respondent, 

v.

PETER MENCHINI et al.,

Defendants and Appellants.

CUD-19-664421

OPINION

APPEAL from a judgment of the Superior Court of San 

Francisco County, Suzanne R. Bolanos, Judge. Affirmed.

Law Offices of Robert De Vries, Robert De Vries, for 

Defendants and Appellants.

Steven Adair MacDonald & Partners, Steven A. 

MacDonald, Jethro S. Busch, and Anna Y. Liu, for Plaintiff and 

Respondent.

_____________________________
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After a bench trial, the trial court found appellants guilty of 

unlawful detainer. Appellants argue that the judgment should be 

reversed because the three-day notice to pay rent or quit was 

defective insofar as it did not allow them, as subtenants, to pay 

the tenant’s rent and cure the tenant’s default. After considering 

the record, arguments, and applicable law, we AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

In 2002, respondent Adair Lara bought a six-unit Victorian 

house at 888/898 14th Street in the city of San Francisco. One of 

the units is 894 14th Street, which was leased by the previous 

owner to Peter Menchini in 1995. Lara inherited this lease when 

she purchased the house. Menchini paid rent to Lara. Rent was 

due on the 5th day of each month.

On November 1, 2016, appellant Larysa Bogachyk Volynets 

moved into 894 14th Street. Volynets wrote a $720 check for 

Menchini once a month for rent, and placed it on the fridge.

On April 1, 2017, appellant Kevin Bard moved into 894 

14th Street. Bard also wrote $720 checks monthly for Menchini, 

and placed them on the fridge.

On January 1, 2019, appellant Allison Matamoros moved 

into 894 14th Street.

Menchini did not pay rent in December 2018. Bard and 

Volynets went that month to the Q Foundation, which provides 

rental assistance, “to set up a third-party payment process . . . so 

that Mr. Menchini could pay his December rent.” Lara accepted 

a third-party rental assistance check from the Q Foundation for 

Menchini’s December rent. (See Civ. Code, § 1947.3, subd. (a)(3).) 

Menchini himself paid rent for January 2019.

Menchini did not pay rent in February 2019 or March 2019. 

Rent was $2,882.01 per month, so Menchini owed $5,764.02.
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In February 2019, four other people lived with Menchini: 

Tuyen Alexandria Doan, Allison Matamoros, Kevin Bard, and 

Larysa/David Bogachyk Volynets. The record is silent as to the 

date that Doan moved in, but Doan moved out prior to this 

unlawful detainer action. The four of them asked Menchini to 

cash their checks and pay rent to Lara.

Bard is not on the lease; Lara has never met him or 

accepted rent from him. Volynets is not on the lease; Lara has 

never met him or accepted rent from him.

On February 16, 2019, Volynets emailed Lara that he and 

Matamoros, Bard, and Duan “left their checks for Mr. Menchini, 

but he hasn’t deposited them[.]”

On February 28, 2019, Lara emailed Volynets and the 

others that they needed to move out by April 1.

On March 15, 2019, Lara emailed Matamoros, Volynets, 

Bard, and Duan: “The rent [is] in arrears, so a pay rent or quit 

notice will appear on the door to 894 on April 1. With Peter gone, 

I will offer the four of you the flat at market rate, $7,200.”

On March 15, 2019, Bard advised Lara in an email that 

“the checks for Peter were still on the fridge, but he didn’t deposit 

the money.” On the same day, Volynets asked Lara in an email: 

“Why . . . don’t [you] ask Peter to pay the rent? This seems to be 

his duty and he has our money.”

On March 22, 2019, Menchini was served with a three-day 

notice to pay rent or quit. Volynets was also personally served 

with several copies of the notice, three of which he gave to the 

other occupants. Menchini did not pay rent, and he did not move 

out. The three-day notice to pay rent quit or quit stated that 

$5,764.02 in rent for February and March 2019 was due, and that 

“PETER MENCHINI is the only authorized tenant at the 
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Premises. All other occupants are not tenants nor co-tenants of 

Landlord, and do not have a direct[] landlord-tenant relationship 

with Landlord. Therefore, Landlord will only accept payment of 

rent from PETER MENCHINI and no other persons.” The threeday notice also stated: “the Lessor does hereby elect to declare the 

forfeiture of your lease or rental agreement under which you hold 

possession of the above-described premises, if you fail to pay the 

amount of rent demanded above.”

On March 24, 2019, Lara met with Volynets and 

Matamoros. Lara told them that she could not accept their 

checks; she could only accept payment from Menchini.

On March 28, 2019, Lara filed an unlawful detainer 

complaint (Code Civ. Proc., § 1161, subd. 2) against Peter 

Menchini, Allison Matamoros, Kevin Bard, Tuyen Alexandria 

Doan, and Larysa Bogachyk Volynets. The complaint and 

summons were properly served upon all parties.

On April 1, 2019, Lara received checks from Volynets, 

Matamoros, and Bard. The checks were “[f]or the month of 

April.” 

On April 2, 2019, Menchini moved out. On the same day, 

Lara emailed Volynets and Matamoros that she had received 

their checks, but discarded them. “You are staying on illegally,” 

Lara wrote. Lara testified that she discarded the checks 

“[b]ecause I wasn’t going to deposit them—they’re not my 

tenant.” Lara testified that if she accepted their checks, “[t]hat 

would have created an instant tenancy with subtenants at Peter’s 

old rent.”

On April 3, 2019, appellants demurred, arguing that “the 

Complaint fails to state facts sufficient to constitute a cause of 

action for unlawful detainer because the underlying rent notice 
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fails to allow the subtenants to pay the demanded rent pursuant 

to Civil Code §1947.3 and therefore the underlying rent notice 

does not meet the statutory requirements of Code of Civil 

Procedure §1161(2).”

On May 2, 2019, the trial court overruled the demurrer.

On June 7, 2019, the trial court granted Lara’s request to 

dismiss Menchini and Doan as defendants, since they moved out 

prior to trial.

The three-day bench trial took place on June 26, 2019, July

1, 2019, and July 2, 2019. Matamoros did not appear at the 

bench trial. During the trial, Bard testified that Matamoros “is 

in Hawaii right now.”

On September 18, 2019, the trial court issued a statement 

of decision and entered judgment in favor of Lara. “Plaintiff has 

met all of the necessary elements and satisfied Plaintiff’s burden 

to establish a cause of action for unlawful detainer based on nonpayment of rent,” the trial court found. “Defendant Peter 

Menchini failed to cure the Three (3) Day Notice to Pay Rent or 

Quit and did not timely pay the rent owed by March 25, 2019 for 

the months of February 2019 and March 2019 and continued to 

occupy the property. ¶ As a result, Plaintiff’s lease with 

Defendant master tenant Peter Menchini was forfeited. . . . ¶ 

There is no privity of contract between any subtenants, including 

ALLISON MATAMOROS, KEVIN D. BARD, and DAVID 

BOGACHYK VOLYNETS, sued as LARYSA BOGACHYK 

VOLYNETS. ¶ After the forfeiture of master tenant Defendant 

Peter Menchini’s lease, the Defendants have no legal right to 

remain in possession.”

On September 26, 2019, the trial court denied appellants’ 

motion for a new trial.
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Appellants timely filed a notice of appeal.

II. DISCUSSION

Appellants Allison Matamoros and Larysa aka David 

Bogachyk Volynets1 argue that the unlawful detainer judgment 

must be reversed because the three-day notice to pay rent or quit 

was defective insofar as it did not allow them, as Menchini’s 

subtenants, to pay his rent and cure his default. We disagree.

Appellants’ briefing on appeal nowhere states the 

applicable standard of review. Respondent points out that 

factual findings are reviewed for substantial evidence, but 

appellants’ argument regarding the three-day notice is not based 

on the trial court’s findings of fact. We review the trial court’s 

findings of fact for substantial evidence, and we independently 

review the trial court’s conclusions of law. (Haraguchi v. 

Superior Court (2008) 43 Cal.4th 706, 711-712; see Foreman & 

Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [“ ‘When a finding 

of fact is attacked on the ground that there is not any substantial 

evidence to sustain it, the power of an appellate court begins and 

ends with the determination as to whether there is any 

substantial evidence contradicted or uncontradicted which will 

support the finding of fact.’ [Citation.]”].)

A tenant of real property is guilty of unlawful detainer 

“[w]hen the tenant continues in possession, in person or by 

subtenant, without the permission of the 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 . . . shall have been 

1 Kevin Bard, Peter Menchini, and Tuyen Alexandria Doan are 

not parties to this appeal.
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served upon the tenant and if there is a subtenant in actual 

occupation of the premises, also upon the subtenant.” (Code Civ. 

Proc., § 1161, subd. 2.) 

A subtenant’s rights “are dependent upon and subject to 

the sublessor’s rights. . . . [R]ights under the sublease stand or 

fall with those of the sublessor. . . .” (Fifth & Broadway 

Partnership v. Kimny, Inc. (1980) 102 Cal.App.3d 195, 201; accord 

Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195 

Cal.App.3d 1032, 1065.) “‘The rights of a subtenant are 

terminated, and the master landlord is entitled to possession, 

when the master lease is terminated because of the tenant’s 

default in the performance of his or her obligations.’ [Citation.]” 

(Syufy Enterprises v. City of Oakland (2002) 104 Cal.App.4th 

869.) Only when a tenant voluntarily surrenders its estate to the 

landlord can a subtenant maintain possession. (Northridge 

Hospital Foundation v. Pic ‘N’ Save No. 9, Inc. (1986) 187 

Cal.App.3d 1088, 1094-1095.) “ ‘Thus, if the original tenant has 

incurred a forfeiture of his lease, and for that reason the landlord 

annuls the lease, the landlord is entitled to the possession as 

against the sublessee.’ ” (Herman v. Campbell (1948) 86 

Cal.App.2d 762, 766.)

Appellants argue that “subtenants in actual possession 

must be served with three-day notices to pay rent or quit directed 

to them giving them an opportunity to cure the default by paying 

the rent.” For this proposition, appellants rely on Four Seas Inv. 

Corp. v. International Hotel Tenants’ Assn. (1978) 81 Cal.App.3d 

604, 611 [“the Legislature did intend to distinguish between 

notice requirements on subtenants as opposed to tenants, the 

intent clearly being to provide an opportunity for a subtenant to 

cure his tenant’s default except where, as here, the default is 
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incurable because the term has expired”], Fifth & Broadway 

Partnership v. Kimny, Inc., supra, 102 Cal.App.3d at p. 202 [“The 

purpose of the statutory requirement of notice is to give the 

tenant, or the subtenant in actual possession, the opportunity to 

pay the rent and thereby retain possession”] and Briggs v. 

Electronic Memories Magnetics Corp. (1975) 53 Cal.App.3d 900, 

904-905 [“landlord did not serve subtenant with a three-day 

notice to pay rent or quit. Merely providing subtenant with a 

copy of the notice directed to and served on tenant is not 

sufficient, since it merely demands that tenant pay rent or quit, 

not that subtenant do so”]. While some language in these cases 

supports appellants’ argument, when read in context and applied 

to the facts here, the cases do not support appellants’ argument. 

Two of the cases are distinguishable because the landlord 

accepted or demanded rent directly from the subtenant. In 

Briggs v. Electronic Memories Magnetics Corp., supra, 53 

Cal.App.3d 900, the landlord accepted rent directly from the 

subtenant. (Id. at p. 903.) In Fifth & Broadway Partnership v. 

Kimny, Inc., supra, 102 Cal.App.3d 195, the landlord demanded 

rent directly from the subtenant. (Id. at pp. 201-202.) The third 

case undermines appellant’s argument: in Four Seas Inv. Corp. v. 

International Hotel Tenants’ Assn., supra, 81 Cal.App.3d 604, the 

landlord did not serve the subtenants, and the Court of Appeal 

concluded that the landlord was not required to serve the 

subtenants: “Code of Civil Procedure section 1161 requires notice 

to terminate on the tenant only and not upon subtenants, who 

were not parties to the month-to-month tenancy.” (Id. at p. 611.)

Here, there is nothing in the record which would support a 

finding that the landlord, Lara, accepted or demanded rent from 

the subtenants. If Lara had accepted rent from the subtenants, 
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she may have thereby created a new tenancy with them at 

Menchini’s monthly rate of $2,882.01. “A tenancy may be created 

by consent and acceptance of rent, despite the absence of a lease. 

[Citation.]” (Cobb v. San Francisco Residential Rent 

Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, 352 

[new tenancy created when landlord accepted rent from 

subtenant after original tenant moved out of the unit]; accord 

Parkmerced Co. v. San Francisco Rent Stabilization & 

Arbitration Bd. (1989) 215 Cal.App.3d 490, 494-495.) The record 

similarly does not support a finding that the landlord waived the 

sublease prohibition. “[T]here is no waiver of a landlord’s 

sublease prohibition unless the landlord received ‘written notice 

from the tenant that is party to the agreement and thereafter 

accepted rent.’” (Mosser Companies v. San Francisco Rent 

Stabilization & Arbitration Bd. (2015) 233 Cal.App.4th 505, 513, 

quoting Civ. Code, § 1954.53, subd. (d)(4).)

Appellants argue that “[a]s legal occupants, [they] are 

entitled to the just cause eviction protections of the Rent 

Ordinance.” But even if appellants were lawful occupants of the 

house, no authority cited by them supports their contention that 

a lawful occupant is a “tenant” within the meaning of the San 

Francisco Rental Ordinance, such that the landlord was required 

to accept rent from them. (See S.F. Admin. Code, § 37.2(t) 

[defining tenant as “[a] person entitled by written or oral 

agreement, sub-tenancy approved by the landlord, or by 

sufferance, to occupy a residential dwelling unit to the exclusion 

of others.”].) We are not aware of any such authority. (See 

Danger Panda LLC v. Launiu (2017) 10 Cal.App.5th 502, 520 & 

fn. 13 [rejecting similar argument].)
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When Menchini failed to pay the rent for February and 

March 2019 before the three-day notice to pay rent or quit 

expired, he forfeited the lease, and “ ‘the landlord was entitled to 

possession as against the sublessee.’ ” (Syufy Enterprises v. City 

of Oakland, supra, 104 Cal.App.4th at p. 883, quoting Herman v. 

Campbell, supra, 86 Cal.App.2d at p. 766.) Lara was not 

required to accept rent from Menchini’s subtenants. (See Civ. 

Code, § 1947.3, subd. (a)(3)(A) [“A landlord . . . is not required to 

accept the rent payment tendered by a third party unless the 

third party has provided to the landlord . . . a signed 

acknowledgment stating that they are not currently a tenant of 

the premises for which the rent payment is being made and that 

acceptance of the rent payment does not create a new tenancy 

with the third party.”]. Had Lara accepted rent directly from the 

subtenants without such a signed acknowledgment from them, 

she may have inadvertently created a new tenant-landlord 

relationship with them. (Cobb v. San Francisco Residential Rent 

Stabilization & Arbitration Bd., supra, 98 Cal.App.4th at p. 352.)

“A rent-controlled apartment cannot . . . be passed on freely 

‘from friend to friend or generation to generation.’ Only those 

occupants who reside in the apartment at the start of the tenancy 

and do so with the landlord’s express or implicit consent are 

protected from unregulated rent increases. [Those] who 

subsequently move into the apartment are not protected unless 

the landlord consents to the occupancy and accepts rent from the 

new occupant, thus creating a new tenancy. [Citation.]” (Mosser 

Companies v. San Francisco Rent Stabilization & Arbitration 

Bd., supra, 233 Cal.App.4th at p. 516.) Just as Lara was entitled 

to ask the subtenants to pay $7,200 to continue in possession 

after Menchini vacated, so too was she entitled to initiate 
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unlawful detainer proceedings when they continued in possession 

after Menchini forfeited his lease.

III. DISPOSITION

The judgment is affirmed.

DATE: September 3, 2021

FLEMING, J.

We concur:

CAFFESE, P.J.

WOODS, J.