DECISION/ STATEMENT OF REASONS (CCP § 77( d)) BY THE COURT

Filed 3/10/21



### T O B E P U BLISHED IN THE OFFICIAL REPORTS

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

APPELLATE DIVISION

ESA MANAGEMENT

, LLC

,

Plaintiff(s) and Respondent (s),

v.
ROBERT JACOB,

Defendant (s) and Appellan t (s). Appellate Division No. : 37

- 2019

- 00200165

- CL

- UD

- CTL Trial Court Case No.: 37

- 2019

- 00020104

- CL

- UD

- CTL T rial Court Location: Central

DECISION/STATEMENT OF REASONS (CCP § 77(d)) BY THE COURT

APPEAL from the July 26, 2019 unlawful detainer judgm ent in favor of ESA Management

,
LLC

, and against Robert Jacob entered by the Superior Court, San Diego County, Ronald F.
Frazier, Judge

. This matter was scheduled for argument and taken under submission on March 5,

2021.

REVERSED and REMANDED.

The “60

- Day N otic e of Termination of Tenancy” was fatally defective and cannot support
an unlawful detainer judgment. The notice failed to comply with Code of Civil Procedure section

1161(2). Code of Civil Procedure section 1161 provides in pertinent part:

A tenant o f re al property, for a term less than life, or the executor or administrator of his or her estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer:- 2

- DECISION/ STATEMENT OF REASONS (CCP § 77( d)) BY THE COURT 1. When the tenant continues in possession... of the prop erty... after the expiration of the term for which it is let to the tenant; provided the expiration is of a nondefault nature ...; but nothing in this subdivision shall be construed as preventing the removal of the occupant in any other lawful manner; but in c ase of a tenancy at will, it shall first be terminated by notice, as prescribed in the Civil Code.

...2. When he or she continues in possession... after default in the payment of rent , pursuant to the lease or agreement under which the property is held, an d th ree days' notice , in writing, requiring its payment, stating the amount which 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 pe rson will be availab le to receive the payment ...

(Italics added.) Although the operative notice here listed the reason for termination as
“Nonpayment of rent,” it did not i nclude the amount of rent due or any information to permit the

tenant to cure the de faul t for nonpayment of rent as required by section 1161(2). Respondent failed
to comply with the statutory requirements, which are strictly construed.
“Due to the summary nature of such an action, a three

- day notice is valid only if the

landlord strict ly c omplies with the provisions of section 1161, subdivision 2 (section 1161(2) ).
[Citation.]” ( Levitz Furniture Co. v. Wingtip Communications (2001) 86 Cal.App.4th 1035, 1038.)
“Unlawful detainer is a highly specialized form of litigation. Highly summary in n ature, the code
requirements 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.” ( Cal

– American Income Pr oper ty Fund IV v. Ho (1984) 161 Cal.App.3d 583, 585.)
The language contained in section 1161(2) is unambiguous, and “‘ [ i ] f there is no ambiguity,
then we presume the lawmakers meant what they said, and the plain meaning of the language
governs.’ [Citatio n.]” (

Allen v. Sully

–

Miller Contracting Co. (2002) 28 Cal.4th 222, 227.) “It is a
cardinal rule of statutory construction that in attempting to ascertain the legislative intention, effect
should be given as often as po ssib le to the statut e as a whole and to every word and clause, thereby
leaving no part of the provision useless or deprived of meaning. [Citation.]” ( Pham v. Workers'
Comp. Appeals Bd. (2000) 78 Cal.App.4th 626, 634.)- 3

- DECISION/ STATEMENT OF REASONS (CCP § 77( d)) BY THE COURT As explained in Foster v. Williams (2 014) 229 Cal.App.4 th Supp. 9 , a Los Angeles
Appellate Division case, which concluded that an unlawful judgment could not be supported by a

defective notice:

“A valid three

- day pay rent or quit notice is a prerequisite to an unlawful detainer action. [Cita tion s.] Because of t he summary nature of an unlawful detainer action, a notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements. [Citation.]” ( Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697, 32 Cal.Rptr.2d 635 .) A judgment must b e reversed when it is based on a three

- day notice which lacks the information required by Code of Civil Procedure section 1161, subdivision (2). ( See Baugh v. Consumers Associates, Limited (1966) 241 Cal.App.2d 672, 674, 50 Cal.Rptr. 82 2, s uperseded by sta tute on other grounds, as indicated in WDT

– Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526, 32 Cal.Rptr.2d 511; Jayasinghe v. Lee (1993) 13 Cal.App.4th Supp. 33, 37, 17 Cal.Rptr.2d 117.)

( See also Hinman v. Wagnon (1959) 172 Cal. App. 2d 24 [Court of Appeal affirmed the trial court’s

order sustaining a demurrer without leave to amend and holding that plaintiff failed to state an

unlawful detainer cause of action where the notice to quit for failure to pay rent was not framed in

the alte rnative].)

A no tice period longer than the three days set forth in section 1161(2) is certainly permitted.
As explained in Rutter, California Practice Guide, Landlord

- Tenant, Termination of Tenancy,
section 7:98.6: “[A] lease provision requiring lon ger notice to a resi dential tenant (i.e., more

than the prescribed three days) is valid (not violative of CCP § 1161 or Civ.C. § 1953 ); and a
landlord who complies with such provision by serving longer than three

- day notice will be held to
have complied wi th t he statutes. [ Se e Hsieh v. Pederson (2018) 23 CA5th Supp. 1, 7, 232 CR3d

701, 705

- 706

—unlawful detainer complaint filed after expiration of full prescribed 14

- day notice
period to pay rent or quit was not premature].” Respondent issued a 60

- day notice, but if the notice

i s based on nonpayment of rent as it was here, the specific amount due and information as to how to
cure the default must still be included in order to fully comply with section 1161(2).
Respondent’s argument that defendant did not ra ise the defective no tice as a defense or
never intended to pay it is irrelevant to the de novo analysis of the legal sufficiency of the notice. A
residential tenant cannot waive the notice provisions. ( Gersten Companies v. Deloney (1989) 212- 4

- DECISION/ STATEMENT OF REASONS (CCP § 77( d)) BY THE COURT Cal.App.3d 11 19,1 128 [“Moreover, under California law, the tenant of a dwelling cannot waive the
provisions of section 1161, subdivision (2). (Civ.Code, § 1953, subd. (a)(3); see Folberg v. Clara G.R. Kinney Co ., (1980) 104 Cal.App.3d 136, 140, 163 Cal.Rptr. 426.)”].)
If judgment had been properly entered against plaintiff ESA Management, plaintiff could
have elected to serve another notice which fully complied with Code of Civil Procedure section

1161(2) and pursued another unlawful detainer action if rent remained unp aid

. In the alt ernative,
prior to trial, plaintiff could have requested the trial court to convert the action from a summary
unlawful detainer proceeding into a limited action for breach or non

- payment of rent where plaintiff

would not have the benefi t of the accelerated summary proceedings. ( See, e.g., Lynch & Freytag v.

Cooper (1990) 218 Cal.App.3d 603.)
Respondent’s compliance with the Tenants’ Right to Know Regulations set forth in the San
Diego Municipal Code section 98.0701 et seq. do es not serv e to satisfy the str ict notice
requirements set forth in section 1161(2) of the Code of Civil Procedure relative to “a default in the
payment of rent.” As aptly argued in Appellant’s Reply Brief:

Against the backdrop of California's unlawful detainer sta tuto ry regime,

as st ated in the opening brief, San Diego's Good Cause Ordinance was adopted to ''protect the rights of long

- term residential tenants by limiting grounds for their eviction. . . " (SDMC §98.0701) by requiring that termination be based on a g ood cause that is sp ecified in an additional notice. 4 The Good Cause Ordinance then explicitly states that "[t]he landlord shall provide the notice prior to or at the same time as the written notice of termination set forth in Civil Code section 1946.1, or a t hree

- day notice described in Code of Civil Procedure sections 1161 and 1161a, is served on the tenant." SDMC §98.0750 (emphasis added).

This Notice under the Good Cause Ordinance does not modify a landlord's obligations under California law: to the e xten t that Civil Cod e section 1946.1 applies, it still does, and to the extent that a three

- day notice described in Code of Civil Procedure sections 1161 and 1161a is required, it is still mandatory

- SDMC section 98.0750 .... does not somehow give a landlord a c hoice between pr oviding written notice of termination under Civil Code section 1946.1 and Code of Civil Procedure section 1161, et seq. [fn5] Tenant, however, does not insist that both a 60

- day notice under Civil Code§ 1946.1 and a three

- day notice to pay rent or quit und er CCP §§1161(2) and 1162 were required here, as Respondent erroneously asserts in its brief at p. 14. Landlord could have provided notice of its grounds for proceeding with the tenancy under the Good Faith Ordinance- 5

- DECISION/ STATEMENT OF REASONS (CCP § 77( d)) BY THE COURT prior to or at th e sa me time as the r equisite three

- day notice required by California law.

Landlord cites no authority for the proposition that Landlord can evade or be relieved of its obligations under Code of Civil Procedure section 1161, et seq ., simply by instead sati sfyi ng Civil Code se ction 1946.1 where the stated cause for eviction is non

- payment of rent. Rather, as discussed in Tenant's Opening Brief, strict adherence to California's statutory requirements for notice to tenants is of paramount importance when a lan dlor d pursues an unl awful detainer action. See

, e.g., WDT

WINCHESTER v. Nilsson (1994) 27 Cal. App. 4th 516,526; Kwok v. Bergren (1982) 130 Cal. App. 3d 596, 599

- 600.

The unlawful detainer judgment is reversed and this matter is remanded to the trial court

wit h directions to vacate the unlawful judgment

, enter judgment in favor of defendant and against
plaintiff nunc pro tunc to July 26, 2019 , and, upon application, conduct a restitution hearing
pursuant to Code of Civil Procedure section 908.

A ppellant is awa rded costs on ap peal. (Rules of Court, rule 8.891.)

Unanimously reversed and remanded.

JULIA C. KELETY Presiding Judge, Appellate Division

MAUREEN F. HALLAHAN Judge, Appellate Division

DAVID M. RUBIN Judge, Appellate Division- 6

- DECISION/ STATEMENT OF REASONS (CCP § 77( d)) BY THE COURT Counsel for Appellant, Robert Jacob:

DANIEL LICKEL, ESQ. 3533 FAIRMOUNT AVE. SAN DIEGO, CA 92105

Counsel for Respondent, ESA Management

, LLC:

AUDETTE PAUL MORALES, ESQ. GORDON REES SCULLY MANSUKHANI LLP 5 PARK PLAZA, STE 1100 IRVINE, CA 92614