Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107
CIVIL LAW & MOTION
Alta Community Investment VI LLC vs Kevin Fewell
|Hearing Date:||Fri Jul 26, 2013 9:30|
Nature of Proceedings: DemurrerComplaint: Plaintiff Alta Community Investment VI, LLC filed a complaint in unlawful detainer against defendant Kevin Fewell. On June 5, 2013, plaintiff purchased real property located at 4333 Cuna Drive in Santa Barbara by purchasing it at a foreclosure sale. On June 6, 2013, plaintiff served a three-day notice to quit on defendant. Demurrer: Defendant demurs to the complaint on the ground that the notice to quit is inappropriate and defective. Defendant claims that the allegation in the complaint of a daily rental value “ostensibly characterizes the Defendants as a tenant.” Therefore, defendant should have been given a 30-day notice to quit or a three-day notice to quit or pay rent, stating the amount due. Defendant also claims that he was not properly served with the complaint. However, he has waived any defect in service by demurring. CCP § 1014; CCP § 410.50; Sierra Club v. Napa County Bd. of Supervisors, 205 Cal.App.4th 162, 171 (2012). A former owner of property may be removed in unlawful detainer upon a three-day notice to quit. CCP § 1161a(b)(3). Plaintiff has alleged that there is no landlord-tenant relationship between the parties. The court treats the demurrer as admitting all material facts properly pleaded. Zelig v. County of Los Angeles, 27 Cal.4th 1112, 1126 (2002). The court may assess damages occasioned to the plaintiff by the unlawful detainer, including the reasonable rental value after forfeiture. CCP § 1174(b); Hudec v. Robertson, 210 Cal.App.3d 1156, 1163 (1989). The rental value from the expiration of the three day notice constitutes damages arising from the unlawful detainer and is not rent converting the relationship into a tenancy. The notice to quit after a foreclosure is not defective because the complaint seeks damages caused by the unlawful detainer. Based on the allegations in the complaint, plaintiff did not serve the wrong notice. The complaint states a cause of action for unlawful detainer. The court overrules the demurrer. Tentative Ruling: The court overrules defendant Kevin Fewell’s demurrer to plaintiff Alta Community Investment VI, LLC’s complaint in unlawful detainer.