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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Peoples’ Self-Help Housing Corporation vs Ian McKenzie

Case No: 17CV04801
Hearing Date: Fri Jan 05, 2018 9:30

Nature of Proceedings: Demurrer

TENTATIVE RULING: For the reasons set forth herein, the demurrer of defendant Ian McKenzie to the complaint of plaintiff People’s Self-Help Housing Corporation is sustained without leave to amend.



Plaintiff People’s Self-Help Housing Corporation is the owner of real property located at 24 East Victoria Street, #15 (the Premises). (Complaint, ¶¶ 1, 3, 4.)

On May 17, 2016, defendant Ian McKenzie entered into a written agreement for a tenancy in the Premises. (Complaint, ¶ 6 & exhibit 1.)

On September 27, 2017, a three-day notice was served on McKenzie. (Complaint, ¶¶ 7, 8 & exhibit 2.) The three-day notice is four pages long. It commences with:

“NOTICE IS HEREBY GIVEN that within three (3) days after the service upon you of this notice, you are hereby required to comply with the below described covenant or quit and deliver up possession of the subject premises to the undersigned who/which is authorized to receive the same, or the undersigned will institute proceedings against you to recover possession of said premises, to recover court costs, attorney’s fees as permitted by law, and you may be liable for additional statutory damages of up to SIX HUNDRED DOLLARS ($600.00) in accordance with California Code of Civil Procedure Section 1174(b), as a result of your failure to comply with the terms of this notice UNLESS YOU PERFORM SAID COVENANT WITHIN THREE DAYS.” (Complaint, exhibit 2, p. 1.)

The notice then extensively quotes portions of the lease and continues:

You have violated one or more of the foregoing as follows:

“On July 30 2017, there were reports of Ian McKenzie walking on the Victoria Hotel roof. He was warned such conduct is a violation of the lease. On Monday July 31, 2017, our housekeeper reported that Ian’s screen was missing. A Work Order was issue and maintenance went to install the screen. On August 1, 2017, maintenance reported that Ian did not allow him entry to install the screen. On August 7, a 24hrs notice was provided to install the screen; the screen was subsequently installed on August 8 2017. He was warned again that he must not access the roof nor should he damage the window screen to gain access to the roof. A report on Monday August 21 2017 indicates that the screen is again missing from Ian McKenzie’s window. On September 20, 2017 Ian McKenzie’s window screen was seen torn and nearly falling off window. On same day, Ian McKenzie was again warned. He responded that he recognized it is unsafe to walk on the building rooftop due to safety hazards. He also agreed to let maintenance enter his apartment to repair the window screen again. On September 22 2017 Ian was again seen on the building roof top. On the morning of September 25, 2017 Ian was again witnessed walking on the building rooftop. When he was questioned by management staff, he said he was on the roof to fix his window screen.


“Because the house rules are constantly broken it is extremely important, that you either vacate the premises or we will start filling [sic] for eviction.”

On October 25, 2017, plaintiff filed its original complaint in unlawful detainer.

On December 4, 2017, McKenzie filed this demurrer to the complaint. McKenzie argues that the three-day notice as alleged is insufficient to support a claim for unlawful detainer.

On December 27, 2017, plaintiff untimely filed opposition. Also on December 27, 2017, McKenzie filed his reply.


The court notes that opposition to this demurrer was filed on December 27, 2017. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) While proof of service was filed showing service on counsel on December 21—which is nine court days before the hearing—the opposition was not filed with the court until December 27, only six court days before the hearing. The court will consider the opposition, but reminds counsel of their obligation both to serve and to file documents timely.

“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’” (Yanting Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

In opposition, plaintiff argues that the demurrer is not based upon matters that are disclosed on the face of the complaint. The complaint attaches and incorporates by reference the three-day notice. (Complaint, ¶ 7(d) & exhibit 2.) The demurrer is based upon the sufficiency of the language of the three-day notice.

“A tenant of real property, for a term less than life, … is guilty of unlawful detainer: [¶] … [¶] 3. When he or she continues in possession … after a neglect or failure to perform other conditions or covenants of the lease or agreement under which the property is held … than the one for the payment of rent, and three days’ notice, in writing, requiring the performance of such conditions or covenants, or the possession of the property, shall have been served upon him or her …. Within three days after the service of the notice, the tenant … may perform the conditions or covenants of the lease … and thereby save the lease from forfeiture ….” (Code Civ. Proc., § 1161, subd. (3).)

“It has long been recognized that the unlawful detainer statutes are to be strictly construed and that relief not statutorily authorized may not be given due to the summary nature of the proceedings. [Citation.] The statutory requirements in such proceedings ‘ “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.” [Citation.]’ [Citation.]” (WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.)

The three-day notice given here is wholly unclear what is or is not required of McKenzie. The notice commences with emphasis in all capital letters that an alternative to quitting the Premises is to perform the “said covenant” within three days. The notice then provides two and a half pages of quotations from the lease. Next is a statement of one or more violations, narrating events regarding McKenzie going on the roof or having a damaged a window screen. The notice then concludes by stating that McKenzie must permanently comply with the above covenant within three days by doing something. But there is nothing stated as to what must be done, only a statement that “it is extremely important that you either vacate the premises or we will start filling [sic] for eviction.”

In opposition, plaintiff provides a brief argument that the three-day notice is sufficient because it contains in its title the notice to perform covenant or surrender possession and contains the language “you” must permanently comply with the covenant within three days. (Opposition, p. 4.) Tellingly, the opposition also does not state what McKenzie was required to do or not do within three days. In this argument, the opposition cites to Code of Civil Procedure section 1161, subdivision (2) (Opposition, p. 4), which applies only to unlawful detainer on the basis of unpaid rent. Unlawful detainer based upon a failure to perform covenants is found in subdivision (3). As discussed above, the notice fails to comply with subdivision (3) by failing to identify what McKenzie was required to do or not to do to “perform said covenant.” The notice does not include any information about any matters of a continuing nature that were in breach of the lease at the time of the notice which McKenzie could then perform in satisfaction of the lease. The notice is legally insufficient.

Code of Civil Procedure section 1161, subdivision (3), requires notice requiring performance of specific conditions or covenants of the lease. As explained above, the notice fails to identify what McKenzie is to do or not to do to perform as required and therefore fails to comply with section 1161. “As special proceedings are created and authorized by statute, the jurisdiction over any special proceeding is limited by the terms and conditions of the statute under which it was authorized [citation], and a lessor’s action to recover possession of real property is not one for unlawful detainer where he does not comply with the statutory notice requirements [citation]. The statutory procedure must be strictly followed.” (Kwok v. Bergren (1982) 130 Cal.App.3d 596, 599-600.) Accordingly, the court concludes that the notice attached to, and incorporated by reference into, the complaint is insufficient to support a cause of action for unlawful detainer. It does not appear that plaintiff can amend to state a cause of action. Plaintiff does not request leave to amend in its opposition. The court will sustain the demurrer without leave to amend.

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