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ICAO
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
May-16-2012 10:42 am
Case Number: CUD-12-641034
Filing Date: May-16-2012 10:39
Filed by: MICHAEL RAYRAY
Juke Box: 001 Image: 03617227
DEMURRER
SHEILA YEE VS. MEI BIN et al
001003617227
Instructions:
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ORLANDO CHAVEZ
344 Holloway Ave.
San Francisco, CA 94112
(415) 685-1730
Defendant In Pro. Per.
SUPERIOR COURT -~ LIMITED JURISDICTION
OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
SHEILA YEE, No. CUD-12-641034
Plaintiff
NOTICE OF DEMURRER OF DEFENDANT
ORLANDO CHAVEZ TO COMPLAINT OF
Vv. PLAINTIFF SHEILA YEE; DEMURRER;
MEMORANDUM OF POINTS AND
AUTHORITIES
MEL BIN,
et al., Date: Tone ZO, 2912
Defendants Time: 9:30 a.'n.
Dept.: Law and Motion, Room 501
TO PLAINTIFF YEE AND PLAINTIFF'S ATTORNEY OF RECORD:
PLEASE TAKE NOTICE that the hearing on the demurrer of Defendant
ORLANDO CHAVEZ will be held or June ZG, 2012, at 9:30 a.m., or as soon
thereafter as the matter can be heard in the Law and. Motion
Department of the above-entitled Court, Room 501, 400 McAllister
Street, San Francisco, California.
DEMURRER
Defendant demurs to the complaint based on this notice, the
attached memorandum of points and authorities, all papers and records
on file herein, and such evidence, both oral and documentary, as may
be presented at the hearing of this motion.
Defendant demurs to the complaint because:
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1. The complaint fails to allege facts sufficient to state a
proper cause of action.
2. The complaint is uncertain.
Dated: May (, 2012
OR’ DO CHAVEZ
Defendant In Pro. Per.
MEMORANDUM OF POINTS AND AUTHORITIES
I. STATEMENT OF FACTS
The present action is one for unlawful detainer. The complaint
is based upon a three day notice to pay or quit, alleging that $871
is due for the period of March 30, 2012 to April 5, 2012. The notice
is attached to the complaint as Exhibit 2. In Paragraph 6 of the
complaint, Plaintiff alleges that Defendants are tenants with a
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written rental agreement ,for a month-to-month tenancy, but does not
allege an agreed upon due date for the rent. Paragraph 6 also states
that the written agreement is attached as Exhibit 1 to the complaint,
but no such Exhibit is attached. In her "Final Notice," attached as
an exhibit to the Complaint, Plaintiff alleges that she purchased the
subject property at foreclosure sale. However, she alleges service
of only a three-day notice, and not a ninety-day notice, prior to
bringing this action.
TI. THE COMPLAINT FAILS TO ALLEGE SUFFICIENT FACTS TO STATE A CAUSE
OF ACTION BECAUSE A NINETY DAY NOTICE IS REQUIRED WHERE
DEFENDANTS ARE TENANTS IN FORECLOSURE.
Code of Civil Procedure section 430.10(e) provides that a
complaint is subject to demurrer where it does not state facts
sufficient to constitute a cause of action.
In the present case, Plaintiff seeks possession of the subject
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premises after allegedly acquiring title at a trustee's sale.
Plaintiff, however, alleges that Defendants are tenant of the former
owner of the premises and Plaintiff does not allege service on
Defendants of a ninety-day notice.
The federal Protecting Tenants at Foreclosure Act, 12 U.S. Cc.
section 5220 provides,
: In the case of any foreclosure . . . any immediate
successor in interest in such property pursuant to the
foreclosure shall assume such interest subject to--
(1) the provision, by such successor in interest of a
notice to vacate to any bona fide tenant at least 90 days
before the effective date of such notice; and
(2) the rights of any bona fide tenant, as of the date of
such notice of foreclosure--
(A) under any bona fide lease entered into before
the notice of foreclosure to occupy the premises
until the end of the remaining term of the lease,
except that a successor in interest may terminate
a lease effective on the date of sale of the unit
to a purchaser who will occupy the unit as a
primary residence, subject to the receipt by the
tenant of the 90 day notice under paragraph (1);
or
(B) without a lease or with a lease terminable at
will under State law, subject to the receipt by
the tenant of the 90 day notice under subsection
(1)
Plaintiff alleges service of a three-day notice to pay rent or
quit. While a three-day notice is sufficient under state law, it is
not sufficient to comply with federal law. The federal law does not
give any exception to the minimum ninety-day notice requirement, even
for alleged nonpayment of rent. See, PNMAC MORTGAGE v. STANKO (March
7, 2012 order from the Superior Court for the County of Los Angeles,
Case No. 11004495, Hon. Lawrence H. Cho) (copy of order attached).
Because Plaintiff has not allege service of a sufficient notice,
Plaintiff's complaint fails to allege facts sufficient to state a
cause of action.
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III. THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION BECAUSE NO BASIS
IS ESTABLISHED FOR THE AMOUNT OF RENT SOUGHT, OR IN THE ALTERNATIVE
THE COMPLAINT IS UNCERTAIN.
Paragraph 6 of the complaint alleges that Defendants have a
written rental agreement, and alleges that a copy is attached, but no
copy of the agreement has been attached to the complaint. No agreed
upon due date for the rent is alleged in the complaint. Civil Code
section 1947 provides,
When there is no usage or contract to the contrary, rents
are payable at the termination of the holding when it does
not exceed one year. If the holding is by the day, week,
month, quarter, or year, rent is payable at the termination
of the respective periods as it successively becomes due.
Because Plaintiff has not alleged a "usage or contract to the
contrary," Defendants' monthly rent would thus be due at the end of
each month, pursuant to Civil Code section 1947. The three-day
notice, however, which was allegedly served on April 5, 2012, seeks
rent for the period March 30, 2012 to April 5, 2012.
Because Plaintiff has not alleged an obligation on the part of
the Defendants to pay the monthly rent by a specific date, the
complaint fails to allege facts sufficient to state a proper cause of
action for the rent claimed in the three-day notice.
At the very least, this incomplete allegation renders the
complaint uncertain and subject to demurrer for this reason as well.
IV. THE COMPLAINT IS UNCERTAIN BECAUSE IT ALLEGES THAT A LEASE IS
ATTACHED, BUT NO SUCH EXHIBIT IS ATTACHED.
Paragraph 6e indicates that the written agreement is attached as
Exhibit 1. However, no such exhibit exists in Plaintiff's complaint.
At a minimum, this renders the complaint uncertain, as Defendants
cannot ascertain what Plaintiff alleges to be the written agreement
upon which this action is based.
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Vv. CONCLUSION
For the foregoing reasons, Defendant requests that this demurrer
be sustained without leave to amen
Dated: April 26, 2012
° DO CHAVEZ
Defendant In Pro. Per.
Demurrer 5~
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FILED
LOS ANGELES SUPERIOR COURT
Kav tvre :
SUPERIOR COURT OF THE STATE OF CALIFOR Ace Sean ian
FOR THE COUNTY OF LOS ANGELES 5¥*MARYAVECHTER,
) Case No. 11U04495
PNMAC MORTGAGE,
Plaintiff,
v ORDER RE: Defendant’s Motion to Quash
KAMIE STANKO, Hearing: February 27, 2012 ,
Defendant.
I
Facts and Procedural History
Plaintiffs purchased the property at issue at a foreclosure sale in January 2011.
Defendant claims to be a tenant of the prior owner. Plaintiff served defendant with a
three day notice to pay rent or quit in December 2011, claiming that defendant failed to
pay rent of $2,500 per month for a 10 month period from March 2011 thru November
2011. The rent was not paid and plaintiff brought this unlawful detainer action to evict
defendant.
Defendant brings this instant motion to quash the service of the summons and first
amended complaint! pursuant to Delta Imports v. Municipal Court, 146 Cal.App.3d 1033,
1036 (1983), challenging the sufficiency of the complaint. Specifically, defendant claims
that because plaintiffs took over the property by foreclosure, defendant is entitled to a
' Defendant had filed a similar challenge to plaintiff's initial complaint, which was heard and denied by this
Court on February 6, 2012. Defendant also seeks sanctions against plaintiff for the filing of that initial
complaint, which is denied for the reasons set forth below.
1~@
minimum 90 day notice to quit under the Federal Protecting Tenants in Foreclosure Act
(‘PTFA”), rather than the 3 day pay rent or quit notice alleged in the complaint. Plaintiff |
counters that the 3 day pay rent or quit notice is legally sufficient because, regardless of
the 90 day PTFA requirement, tenants still must pay the rent or be subject to only a 3 day
pay or quit notice. Oral arguments were held on February 27, 2012 and the matter was
taken under submission.
ll
ANALYSIS & ORDER
A. Motion to Quash
1, Complaint Caption
Defendant first argues that the complaint must be quashed because it fails to
comply with CCP § 1166(c), which requires that “in an action regarding residential real
property based on Section 1 161a, the plaintiff shall state in the caption of the complaint
‘Action based on Code of Civil Procedure Section 1161a.” Section 1161a sets forth the
procedural requirements to evict parties when the property has been sold under a deed of
trust/foreclosure sale.
_ Pleintiffs concede both that they obtained the property via trustees deed sale and
that the complaint fails to contain the applicable language stated above, but argues that
the § 1161a language is not necessary because plaintiffs are not seeking an eviction under
that section (foreclosure sale), but rather under CCP § 1161(2) (failure to pay rent).
This Court agrees with plaintiff's argument that their choice of legal theory
dictates the procedural landscape and that since they have chosen failure to pay rent=
‘This Court agrées with plaintiff's argument that their choice of legal theory
dictates the procedural landscape and that since they have chosen faiJure to pay rent
under CCP §116] as their theory of liability, the required language of CCP § 1166(c)
does not apply. By its very terms, the mandatory caption language of § 1166(c) apply
only to “actions based on § 1161a.” Since plaintiffs are not basing their eviction ona
foreclosure theory under that section, the mandatory language does not apply.
2. Required Notice Period
Defendant next argues that the complaint is insufficient as it alleges only a 3 day
notice to pay rent or quit rather than a federally mandated 90 day notice period under the
Protecting Tenants in Foreclosure Act of 2009 (“PTFA”), 12 U.S.C. § 5220. Plaintiff
counters that only a 3 day notice is required in failure to pay rent cases under § 1161(2)
and not the PTFA 90 day notice. The applicable provision of the PTFA states:
In the case of any foreclosure . . . any immediate successor
in interest in such property pursuant to the foreclosure shall
assume such interest subject to:
(1) the provision, by such successor in interest of a notice
to vacate to any bona fide tenant at least 90 days before
the effective date of such notice; and
(2) the rights of any bona fide tenant —
(A) under any bona fide lease entered into before the notice of
foreclosure to occupy the premises until the end of the remaining
term of the lease... .
In simple terms, a foreclosing party must provide a bona fide tenant a minimum
90 day notice before termination of the tenancy and must honor any remaining term ofa
bona fide lease. Plaintiff concedes that the complaint alleges only a 3 day notice, but
argues, in essence, that the 90 day PTFA notice is applicable only when a foreclosing
party seeks to evict based on the eviction alone, and that plaintiffs are not seekingwe ~@ 9
eviction on that basis but rather on a failure to pay rent theory which tequires only a3
day notice pursuant to § 1161(2). Accepting this analysis, it is possible for a foreclosing
party who would otherwise be barred from evicting a tenant for 90 days, to be able to
effectuate an eviction before the 90 day period if a tenant failed to pay rent within that
time.
Plaintiff's theory reads into the PTFA something that it is silent on: a requirement
that bona fide tenants continue to honor their rental obligations post foreclosure and that
failure to do so gives rise to the right of the foreclosing party to evict the non-paying
tenant. At first blush, plaintiff's theory that upon foreclosure they step into the shoes of
the prior landlord and therefore assumes the right of the landlord to evict for failure to
pay rent on a 3 day notice has persuasive appeal from both a common sense and fairness ,
perspective. After all, since subsection (a)(2)(A) of the PTFA binds the foreclosing party
to honor any remaining term of a prior bona fide lease agreement, it only makes sense to
hold the tenant to their responsibilities under the same bona fide lease agreement, that is,
the tenant is entitled to the remainder of his lease on the condition that he continue to
timely pay his rent as required by that lease. Without this implied corollary to PTFA
(a)(2)(A), the landlord would be bound to allow the tenant to live out the remainder of the
lease agreement rent free, which would be patently unjust. In accepting the theory that
the PTFA requires both parties to honor their respective responsibilities for the remainder
of the lease, one should also logically accept the converse of that theory: if the tenant
does not continue to pay the rent, the foreclosing party is relieved of his/her obligation to
honor the remainder of the lease term and, as plaintiff urges, should be allowed to evict
the non-paying tenant with a 3 day notice to pay rent or quit pursuant to CCP § 1161(2).~“@ e
This Court agrees that even after foreclosure there is an ongoing duty of the tenant
to pay the rent in order for him/her to invoke the PTFA protections for the remaining
term of the lease agreement. This Court also agrees that the tenant’s failure to pay rent
during the remaining lease period relieves the landlord of his/her obligation to honor the
remaining balance and provides the foreclosing party with the remedy of eviction under
CCP § 1161, which requires only a3 day notice. But how can this analysis be accorded
with the 90 day notice requirement under the PIFA? More specifically, does the 90 day
notice still apply when the theory of eviction is failure to pay rent?
‘The answer lies in a close examination of the specific language of the PTFA,
which requires that “any immediate successor in interest in such property pursuant to the
foreclosure shall assume such interest subject to . . . [providing to a bona fide tenant] a
notice to vacate . . . at least 90 days before the effective date of such notice . . . (emphasis
added).” Here, the applicable “interest” assumed by plaintiff in this action was the prior
landlord's right to demand defendant to continue to pay his/her rent or be subject to
eviction for failure to do so; however, that interest is subject to and conditioned upon
plaintiff providing the tenant a notice to vacate “at least 90 days before the effective date
of such notice.” The language of the PTFA is unequivocal in this regard; no matter what
rights or “interest” the foreclosing party assumes (including the right to evict for non-
payment of rent), it cannot evict without providing the minimum 90 day notice to bona
fide tenants, In other words, it appears to this Court that the 90 day notice period is
inviolable no matter what theory of eviction a foreclosing party has available to it.-o °
Plaintiffs argue that in applying the PTFA in this manner in the non-payment of
Tent context, it allows for tenants to live rent free for 2 minimum 90 days which cannot be
the intention of that statute to allow for such an unjust result. However, the 90 day PTFA
notice period does not excuse the tenant from his/her rental obligations; it merely delays
the remedy of eviction for a 90 day period. Following the 90 day notice, plaintiff is
entitled to avail itself of all the rights and remedies the prior landlord had to seek redress
for the tenant’s failure to pay rent, including eviction and the awarding of back rent, and
holdover damages for the 90 day period.
Having found that the PTFA 90 day notice is applicable even in the failure to pay
rent context, defendant’s motion to quash service of the summons and complaint must be
granted because the complaint fails to allege compliance with that statutory notice
requirement.
B. Defendant’s Motion for Sanctions and Attorney’s Fees
Defendant seeks the award of. sanctions under CCP § 128.7 against plaintiff,
alleging that their original complaint was frivolous and brought for an improper purpose.
The issues raised by plaintiffs initial complaint are nearly identical to those raised in
their current First Amended Complaint, and the arguments submitted by both parties in
attacking/defending the sufficiency of those complaints were equally as compelling for
both sides. Indeed, at the February 6, 2012 hearing, this Court found in favor of the
plaintiffs and denied defendant's challenge to the initial complaint. The issues raised
then and now appear to be ones of first impression, without controlling caselaw for either
side. Given that the legal theory and positions taken by plaintiff in both the initial andNese
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first amended complaints were non-frivolous, taken in good faith, and objectively
teasonable, this Court finds absolutely no basis to award sanctions under CCP § 128.7.
IT IS HEREBY ORDERED THAT:
(1) Defendant’s motion to quash service of summons and complaint is
GRANTED; and
(2) Defendant’s motion for sanctions is DENIED.
March 7, 2012
ION. LAWRENCE H. CHO
Judge, Los Angeles County Superior Courtwo FAHD NH PR WH Hm
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ORLANDO CHAVEZ
344 Holloway Ave.
San Francisco, CA 94112
(415) 685-1730
Defendant In Pro. Per.
SUPERIOR COURT -- LIMITED JURISDICTION
OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
SHEILA YEE, No. CUD-12-641034
Plaintiff
[Proposed]
ORDER SUSTAINING DEMURRER
v.
MEL BIN,
et al.,
Defendants
Upon consideration of the demurrer filed by Defendant ORLANDO
CHAVEZ , all papers and records on file herein, and any opposition
thereto, it is ORDERED, ADJUDGED, AND DECREED that the demurrer is
sustained, pursuant to Code of Civil Procedure section 430.10(e).
DATE JUDGE OF THE SUPERIOR COURT,
LIMITED JURISDICTION, OF THE
STATE OF CALIFORNIA
Proposed OrderPROOF OF SERVICE BY MAIL
CASE NAME: Shelia Yee. v. Mei Bin, et al.
CASE NO.: CUD-12-641034
I, Laura Slade Chiera, declare as follows:
Tam employed within the City and County of San Francisco. My business address is
HOMELESS ADVOCACY PROJECT, 1360 Mission Street, Suite 201, San Francisco,
California 94103. I am over the age of eighteen (18) years of age and not a party to the within
action. I am readily familiar with the HOMELESS ADVOCACY PROJECT’s practice for
collection and processing of correspondence for mailing with the United States Postal Service.
Correspondence so collected and processed is deposited with the United States Postal Service
that same day in the ordinary course of business.
On May 16, 2012 in accordance with Code of Civil Procedure Section 1013a (3), I served}
the following:
NOTICE OF DEMURRER OF DEFENDANT OLANDO CHAVES TO COMPLAINT
OF PLAINTIFF SHELIA YEE; DEMURRER; MEMORANDUM OF POINTS AND
AUTHORITIES
upon PLAINTIFF in pro per, Shelia Yee, by placing the same at the HOMELESS ADVOCACY
PROIECT for deposit in the United States Postal Service on that date in an envelope addressed
as follows:
Shelia Yee
2483 16" Ave.,
San Francisco, CA 94116
T sealed the envelope and placed it for collection and mailing on that date following ordinary
business practices, in the City and County of San Francisco, California.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration
was executed on May 16, 2012 at San Francisco, California.
v _
jura Sladé Chiera
Proof of Service
Preview
ICAO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet May-16-2012 10:42 am Case Number: CUD-12-641034 Filing Date: May-16-2012 10:39 Filed by: MICHAEL RAYRAY Juke Box: 001 Image: 03617227 DEMURRER SHEILA YEE VS. MEI BIN et al 001003617227 Instructions: Please place this sheet on top of the document to be scanned.Ce ANY NAH FF wWN = yb Ne Y YM NEN NR NR ee eee SrA mM WY = SO eH ANH Rh WY SB CO] - “ ORLANDO CHAVEZ 344 Holloway Ave. San Francisco, CA 94112 (415) 685-1730 Defendant In Pro. Per. SUPERIOR COURT -~ LIMITED JURISDICTION OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO SHEILA YEE, No. CUD-12-641034 Plaintiff NOTICE OF DEMURRER OF DEFENDANT ORLANDO CHAVEZ TO COMPLAINT OF Vv. PLAINTIFF SHEILA YEE; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES MEL BIN, et al., Date: Tone ZO, 2912 Defendants Time: 9:30 a.'n. Dept.: Law and Motion, Room 501 TO PLAINTIFF YEE AND PLAINTIFF'S ATTORNEY OF RECORD: PLEASE TAKE NOTICE that the hearing on the demurrer of Defendant ORLANDO CHAVEZ will be held or June ZG, 2012, at 9:30 a.m., or as soon thereafter as the matter can be heard in the Law and. Motion Department of the above-entitled Court, Room 501, 400 McAllister Street, San Francisco, California. DEMURRER Defendant demurs to the complaint based on this notice, the attached memorandum of points and authorities, all papers and records on file herein, and such evidence, both oral and documentary, as may be presented at the hearing of this motion. Defendant demurs to the complaint because: DemurrerCent An eB HY NY Ye Ne Ye NM NN Re eran & Wry me SE BAI DAM BF wWN SB CS Ne 1. The complaint fails to allege facts sufficient to state a proper cause of action. 2. The complaint is uncertain. Dated: May (, 2012 OR’ DO CHAVEZ Defendant In Pro. Per. MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS The present action is one for unlawful detainer. The complaint is based upon a three day notice to pay or quit, alleging that $871 is due for the period of March 30, 2012 to April 5, 2012. The notice is attached to the complaint as Exhibit 2. In Paragraph 6 of the complaint, Plaintiff alleges that Defendants are tenants with a Ww Ma wkiSC's predeaescar iw niorest written rental agreement ,for a month-to-month tenancy, but does not allege an agreed upon due date for the rent. Paragraph 6 also states that the written agreement is attached as Exhibit 1 to the complaint, but no such Exhibit is attached. In her "Final Notice," attached as an exhibit to the Complaint, Plaintiff alleges that she purchased the subject property at foreclosure sale. However, she alleges service of only a three-day notice, and not a ninety-day notice, prior to bringing this action. TI. THE COMPLAINT FAILS TO ALLEGE SUFFICIENT FACTS TO STATE A CAUSE OF ACTION BECAUSE A NINETY DAY NOTICE IS REQUIRED WHERE DEFENDANTS ARE TENANTS IN FORECLOSURE. Code of Civil Procedure section 430.10(e) provides that a complaint is subject to demurrer where it does not state facts sufficient to constitute a cause of action. In the present case, Plaintiff seeks possession of the subject Demurrer 2Ce mat HDu kh WwW YP = Ny NY YY Ne NY NN BE Be ee ee ee oe onan mM ek ONY B= SBE Bea DM BR WY S&S S&S ~ as “ premises after allegedly acquiring title at a trustee's sale. Plaintiff, however, alleges that Defendants are tenant of the former owner of the premises and Plaintiff does not allege service on Defendants of a ninety-day notice. The federal Protecting Tenants at Foreclosure Act, 12 U.S. Cc. section 5220 provides, : In the case of any foreclosure . . . any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to-- (1) the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and (2) the rights of any bona fide tenant, as of the date of such notice of foreclosure-- (A) under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease, except that a successor in interest may terminate a lease effective on the date of sale of the unit to a purchaser who will occupy the unit as a primary residence, subject to the receipt by the tenant of the 90 day notice under paragraph (1); or (B) without a lease or with a lease terminable at will under State law, subject to the receipt by the tenant of the 90 day notice under subsection (1) Plaintiff alleges service of a three-day notice to pay rent or quit. While a three-day notice is sufficient under state law, it is not sufficient to comply with federal law. The federal law does not give any exception to the minimum ninety-day notice requirement, even for alleged nonpayment of rent. See, PNMAC MORTGAGE v. STANKO (March 7, 2012 order from the Superior Court for the County of Los Angeles, Case No. 11004495, Hon. Lawrence H. Cho) (copy of order attached). Because Plaintiff has not allege service of a sufficient notice, Plaintiff's complaint fails to allege facts sufficient to state a cause of action. Demurrer 3Co mt nun kB WwW NY vy Ny NY RYN NY RN Be Be Be oe ee Re ee eran swe MNM SB SO we DA MN & wD NY S&S III. THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION BECAUSE NO BASIS IS ESTABLISHED FOR THE AMOUNT OF RENT SOUGHT, OR IN THE ALTERNATIVE THE COMPLAINT IS UNCERTAIN. Paragraph 6 of the complaint alleges that Defendants have a written rental agreement, and alleges that a copy is attached, but no copy of the agreement has been attached to the complaint. No agreed upon due date for the rent is alleged in the complaint. Civil Code section 1947 provides, When there is no usage or contract to the contrary, rents are payable at the termination of the holding when it does not exceed one year. If the holding is by the day, week, month, quarter, or year, rent is payable at the termination of the respective periods as it successively becomes due. Because Plaintiff has not alleged a "usage or contract to the contrary," Defendants' monthly rent would thus be due at the end of each month, pursuant to Civil Code section 1947. The three-day notice, however, which was allegedly served on April 5, 2012, seeks rent for the period March 30, 2012 to April 5, 2012. Because Plaintiff has not alleged an obligation on the part of the Defendants to pay the monthly rent by a specific date, the complaint fails to allege facts sufficient to state a proper cause of action for the rent claimed in the three-day notice. At the very least, this incomplete allegation renders the complaint uncertain and subject to demurrer for this reason as well. IV. THE COMPLAINT IS UNCERTAIN BECAUSE IT ALLEGES THAT A LEASE IS ATTACHED, BUT NO SUCH EXHIBIT IS ATTACHED. Paragraph 6e indicates that the written agreement is attached as Exhibit 1. However, no such exhibit exists in Plaintiff's complaint. At a minimum, this renders the complaint uncertain, as Defendants cannot ascertain what Plaintiff alleges to be the written agreement upon which this action is based. Demurrer 4Cera Dn kk BD HY Mm 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -_ “~~ Meow at Vv. CONCLUSION For the foregoing reasons, Defendant requests that this demurrer be sustained without leave to amen Dated: April 26, 2012 ° DO CHAVEZ Defendant In Pro. Per. Demurrer 5~ “> FILED LOS ANGELES SUPERIOR COURT Kav tvre : SUPERIOR COURT OF THE STATE OF CALIFOR Ace Sean ian FOR THE COUNTY OF LOS ANGELES 5¥*MARYAVECHTER, ) Case No. 11U04495 PNMAC MORTGAGE, Plaintiff, v ORDER RE: Defendant’s Motion to Quash KAMIE STANKO, Hearing: February 27, 2012 , Defendant. I Facts and Procedural History Plaintiffs purchased the property at issue at a foreclosure sale in January 2011. Defendant claims to be a tenant of the prior owner. Plaintiff served defendant with a three day notice to pay rent or quit in December 2011, claiming that defendant failed to pay rent of $2,500 per month for a 10 month period from March 2011 thru November 2011. The rent was not paid and plaintiff brought this unlawful detainer action to evict defendant. Defendant brings this instant motion to quash the service of the summons and first amended complaint! pursuant to Delta Imports v. Municipal Court, 146 Cal.App.3d 1033, 1036 (1983), challenging the sufficiency of the complaint. Specifically, defendant claims that because plaintiffs took over the property by foreclosure, defendant is entitled to a ' Defendant had filed a similar challenge to plaintiff's initial complaint, which was heard and denied by this Court on February 6, 2012. Defendant also seeks sanctions against plaintiff for the filing of that initial complaint, which is denied for the reasons set forth below. 1~@ minimum 90 day notice to quit under the Federal Protecting Tenants in Foreclosure Act (‘PTFA”), rather than the 3 day pay rent or quit notice alleged in the complaint. Plaintiff | counters that the 3 day pay rent or quit notice is legally sufficient because, regardless of the 90 day PTFA requirement, tenants still must pay the rent or be subject to only a 3 day pay or quit notice. Oral arguments were held on February 27, 2012 and the matter was taken under submission. ll ANALYSIS & ORDER A. Motion to Quash 1, Complaint Caption Defendant first argues that the complaint must be quashed because it fails to comply with CCP § 1166(c), which requires that “in an action regarding residential real property based on Section 1 161a, the plaintiff shall state in the caption of the complaint ‘Action based on Code of Civil Procedure Section 1161a.” Section 1161a sets forth the procedural requirements to evict parties when the property has been sold under a deed of trust/foreclosure sale. _ Pleintiffs concede both that they obtained the property via trustees deed sale and that the complaint fails to contain the applicable language stated above, but argues that the § 1161a language is not necessary because plaintiffs are not seeking an eviction under that section (foreclosure sale), but rather under CCP § 1161(2) (failure to pay rent). This Court agrees with plaintiff's argument that their choice of legal theory dictates the procedural landscape and that since they have chosen failure to pay rent= ‘This Court agrées with plaintiff's argument that their choice of legal theory dictates the procedural landscape and that since they have chosen faiJure to pay rent under CCP §116] as their theory of liability, the required language of CCP § 1166(c) does not apply. By its very terms, the mandatory caption language of § 1166(c) apply only to “actions based on § 1161a.” Since plaintiffs are not basing their eviction ona foreclosure theory under that section, the mandatory language does not apply. 2. Required Notice Period Defendant next argues that the complaint is insufficient as it alleges only a 3 day notice to pay rent or quit rather than a federally mandated 90 day notice period under the Protecting Tenants in Foreclosure Act of 2009 (“PTFA”), 12 U.S.C. § 5220. Plaintiff counters that only a 3 day notice is required in failure to pay rent cases under § 1161(2) and not the PTFA 90 day notice. The applicable provision of the PTFA states: In the case of any foreclosure . . . any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to: (1) the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and (2) the rights of any bona fide tenant — (A) under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease... . In simple terms, a foreclosing party must provide a bona fide tenant a minimum 90 day notice before termination of the tenancy and must honor any remaining term ofa bona fide lease. Plaintiff concedes that the complaint alleges only a 3 day notice, but argues, in essence, that the 90 day PTFA notice is applicable only when a foreclosing party seeks to evict based on the eviction alone, and that plaintiffs are not seekingwe ~@ 9 eviction on that basis but rather on a failure to pay rent theory which tequires only a3 day notice pursuant to § 1161(2). Accepting this analysis, it is possible for a foreclosing party who would otherwise be barred from evicting a tenant for 90 days, to be able to effectuate an eviction before the 90 day period if a tenant failed to pay rent within that time. Plaintiff's theory reads into the PTFA something that it is silent on: a requirement that bona fide tenants continue to honor their rental obligations post foreclosure and that failure to do so gives rise to the right of the foreclosing party to evict the non-paying tenant. At first blush, plaintiff's theory that upon foreclosure they step into the shoes of the prior landlord and therefore assumes the right of the landlord to evict for failure to pay rent on a 3 day notice has persuasive appeal from both a common sense and fairness , perspective. After all, since subsection (a)(2)(A) of the PTFA binds the foreclosing party to honor any remaining term of a prior bona fide lease agreement, it only makes sense to hold the tenant to their responsibilities under the same bona fide lease agreement, that is, the tenant is entitled to the remainder of his lease on the condition that he continue to timely pay his rent as required by that lease. Without this implied corollary to PTFA (a)(2)(A), the landlord would be bound to allow the tenant to live out the remainder of the lease agreement rent free, which would be patently unjust. In accepting the theory that the PTFA requires both parties to honor their respective responsibilities for the remainder of the lease, one should also logically accept the converse of that theory: if the tenant does not continue to pay the rent, the foreclosing party is relieved of his/her obligation to honor the remainder of the lease term and, as plaintiff urges, should be allowed to evict the non-paying tenant with a 3 day notice to pay rent or quit pursuant to CCP § 1161(2).~“@ e This Court agrees that even after foreclosure there is an ongoing duty of the tenant to pay the rent in order for him/her to invoke the PTFA protections for the remaining term of the lease agreement. This Court also agrees that the tenant’s failure to pay rent during the remaining lease period relieves the landlord of his/her obligation to honor the remaining balance and provides the foreclosing party with the remedy of eviction under CCP § 1161, which requires only a3 day notice. But how can this analysis be accorded with the 90 day notice requirement under the PIFA? More specifically, does the 90 day notice still apply when the theory of eviction is failure to pay rent? ‘The answer lies in a close examination of the specific language of the PTFA, which requires that “any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to . . . [providing to a bona fide tenant] a notice to vacate . . . at least 90 days before the effective date of such notice . . . (emphasis added).” Here, the applicable “interest” assumed by plaintiff in this action was the prior landlord's right to demand defendant to continue to pay his/her rent or be subject to eviction for failure to do so; however, that interest is subject to and conditioned upon plaintiff providing the tenant a notice to vacate “at least 90 days before the effective date of such notice.” The language of the PTFA is unequivocal in this regard; no matter what rights or “interest” the foreclosing party assumes (including the right to evict for non- payment of rent), it cannot evict without providing the minimum 90 day notice to bona fide tenants, In other words, it appears to this Court that the 90 day notice period is inviolable no matter what theory of eviction a foreclosing party has available to it.-o ° Plaintiffs argue that in applying the PTFA in this manner in the non-payment of Tent context, it allows for tenants to live rent free for 2 minimum 90 days which cannot be the intention of that statute to allow for such an unjust result. However, the 90 day PTFA notice period does not excuse the tenant from his/her rental obligations; it merely delays the remedy of eviction for a 90 day period. Following the 90 day notice, plaintiff is entitled to avail itself of all the rights and remedies the prior landlord had to seek redress for the tenant’s failure to pay rent, including eviction and the awarding of back rent, and holdover damages for the 90 day period. Having found that the PTFA 90 day notice is applicable even in the failure to pay rent context, defendant’s motion to quash service of the summons and complaint must be granted because the complaint fails to allege compliance with that statutory notice requirement. B. Defendant’s Motion for Sanctions and Attorney’s Fees Defendant seeks the award of. sanctions under CCP § 128.7 against plaintiff, alleging that their original complaint was frivolous and brought for an improper purpose. The issues raised by plaintiffs initial complaint are nearly identical to those raised in their current First Amended Complaint, and the arguments submitted by both parties in attacking/defending the sufficiency of those complaints were equally as compelling for both sides. Indeed, at the February 6, 2012 hearing, this Court found in favor of the plaintiffs and denied defendant's challenge to the initial complaint. The issues raised then and now appear to be ones of first impression, without controlling caselaw for either side. Given that the legal theory and positions taken by plaintiff in both the initial andNese @ ~@ first amended complaints were non-frivolous, taken in good faith, and objectively teasonable, this Court finds absolutely no basis to award sanctions under CCP § 128.7. IT IS HEREBY ORDERED THAT: (1) Defendant’s motion to quash service of summons and complaint is GRANTED; and (2) Defendant’s motion for sanctions is DENIED. March 7, 2012 ION. LAWRENCE H. CHO Judge, Los Angeles County Superior Courtwo FAHD NH PR WH Hm yb NY YY NY YN NM Be Be RB ee ee ee et oN A nH FF BD YP me SC we HD HAH BR WN = OS ‘Mer “ ORLANDO CHAVEZ 344 Holloway Ave. San Francisco, CA 94112 (415) 685-1730 Defendant In Pro. Per. SUPERIOR COURT -- LIMITED JURISDICTION OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO SHEILA YEE, No. CUD-12-641034 Plaintiff [Proposed] ORDER SUSTAINING DEMURRER v. MEL BIN, et al., Defendants Upon consideration of the demurrer filed by Defendant ORLANDO CHAVEZ , all papers and records on file herein, and any opposition thereto, it is ORDERED, ADJUDGED, AND DECREED that the demurrer is sustained, pursuant to Code of Civil Procedure section 430.10(e). DATE JUDGE OF THE SUPERIOR COURT, LIMITED JURISDICTION, OF THE STATE OF CALIFORNIA Proposed OrderPROOF OF SERVICE BY MAIL CASE NAME: Shelia Yee. v. Mei Bin, et al. CASE NO.: CUD-12-641034 I, Laura Slade Chiera, declare as follows: Tam employed within the City and County of San Francisco. My business address is HOMELESS ADVOCACY PROJECT, 1360 Mission Street, Suite 201, San Francisco, California 94103. I am over the age of eighteen (18) years of age and not a party to the within action. I am readily familiar with the HOMELESS ADVOCACY PROJECT’s practice for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. On May 16, 2012 in accordance with Code of Civil Procedure Section 1013a (3), I served} the following: NOTICE OF DEMURRER OF DEFENDANT OLANDO CHAVES TO COMPLAINT OF PLAINTIFF SHELIA YEE; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES upon PLAINTIFF in pro per, Shelia Yee, by placing the same at the HOMELESS ADVOCACY PROIECT for deposit in the United States Postal Service on that date in an envelope addressed as follows: Shelia Yee 2483 16" Ave., San Francisco, CA 94116 T sealed the envelope and placed it for collection and mailing on that date following ordinary business practices, in the City and County of San Francisco, California. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on May 16, 2012 at San Francisco, California. v _ jura Sladé Chiera Proof of Service