Opinion
B305534
04-23-2021
CRAIG AND CARRIE VENTURA CORNER, LLC, Plaintiff and Appellant, v. JOZ KNOWZ, INC., Defendant and Respondent.
Law Office of Lee David Lubin, Lee David Lubin; Law Offices of Richard A. Leach and Nicole S. Lane for Plaintiff and Appellant. Law Office of Daniel J. Bramzon & Associates; Daniel J. Bramzon, Ross T. Kutash, and Kevin P. Hermansen for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19VEUD02278) APPEAL from a judgment of the Superior Court of Los Angeles County, Virginia Keeny, Judge. Affirmed. Law Office of Lee David Lubin, Lee David Lubin; Law Offices of Richard A. Leach and Nicole S. Lane for Plaintiff and Appellant. Law Office of Daniel J. Bramzon & Associates; Daniel J. Bramzon, Ross T. Kutash, and Kevin P. Hermansen for Defendant and Respondent.
____________________
Plaintiff Craig and Carrie Ventura Corner, LLC, (landlord) appeals from a grant of summary judgment in favor of defendant and respondent Joz Knowz, Inc. (tenant). The trial court ruled that the 3-day notice landlord served on tenant to initiate unlawful detainer proceedings failed to identify adequately the person to whom tenant should pay the late rent, as required by statute.
We conclude the 3-day notice was ambiguous, and could be read to identify at least two possible recipients for the unpaid rent, without making clear which was the correct recipient. It therefore did not strictly comply with the notice requirements of the unlawful detainer statutes, which were intended to prevent tenant confusion by setting forth clear rules regarding payment of rent. Accordingly, we affirm.
BACKGROUND
Landlord filed an unlawful detainer action against tenant, a fitness studio, on August 28, 2019. The operative complaint alleged that tenant had failed to pay the monthly rent of $11,500 following service of a 3-day notice to pay rent or quit (3-day notice).
The complaint contained additional allegations that the trial court struck by stipulation of the parties.
The complaint attached a copy of the 3-day notice. The notice listed the address of tenant's premises, and read, "NOTICE IS HER[E]BY GIVEN that, within three days after service of you of this notice, you must pay the undersigned in full rent now due and unpaid on the Premises described above in the amount of $11,500.00 being the rent that became due on August 1, 2019 for the period through August 31, 2019 or alternatively to surrender possession of the Premises to Craig G. Konjoyan or Carrie E. Konjoyan[,] your lessor's authorized agents."
After explaining that failure to comply with the notice would result in legal action, the notice stated, "THE PAYMENT MUST BE MADE and delivered to H & M Konjoyan 14852 Ventura Blvd. Suite 122, Sherman Oaks, CA, 91403. Payment may be made anytime Monday through Friday 9 AM to 5 PM. Phone 818-788-0912." (Underscoring omitted.) This information was immediately followed by the signature of "Carrie Konjoyan, agent and owner for Craig and Carrie Ventura Corner LLC, Ventura, LLC [sic]." (Some capitalization omitted.)
Tenant filed a motion for summary judgment contending that the 3-day notice did not meet statutory requirements and was invalid. Specifically, tenant argued that under Code of Civil Procedure section 1161, subdivision (2), a 3-day notice must designate a natural person to receive the rent due. Tenant contended that "H & M Konjoyan," to whom the 3-day notice indicated the "payment must be made and delivered" (some capitalization omitted), were two deceased individuals, which did not satisfy the statute.
Unspecified statutory citations are to the Code of Civil Procedure.
Tenant also argued the 3-day notice overstated the rent due, because tenant was entitled to a credit for landlord's delay in granting possession of the premises for a few days at the start of the lease in February 2019.
In opposition, landlord argued that section 1161 does not require that the "person" designated to receive the rent be a natural person, and therefore H & M Konjoyan, which landlord identified as a fictitious business name, satisfied the requirement. Assuming arguendo section 1161 did require a natural person, landlord contended the 3-day notice nonetheless satisfied the requirement because the fictitious business name was registered to an individual, Craig Konjoyan. Landlord further argued the notice did not overstate the rent because tenant's purported credit was offset by landlord improvements and unpaid late fees and utility charges, and tenant had waived any claim to rent abatement.
Following a hearing, the trial court granted the motion for summary judgment, concluding that the 3-day notice "failed to adequately name the person to whom the rent should be paid." The trial court "grant[ed] the premises to [tenant]." In a later order, the trial court awarded tenant $20,790 in attorney fees.
The quoted language is from the trial court's later minute order awarding tenant attorney fees, which summarized the proceedings up to that point. The minute order granting summary judgment did not itself explain the trial court's reasoning, apart from stating that "the 3-day notice . . . is defective." Although the minute order indicates the trial court issued an oral tentative decision, landlord opted to proceed on appeal without a reporter's transcript.
Landlord timely appealed.
STANDARD OF REVIEW
" 'The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.' [Citation.] '[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.' [Citation.] A defendant can meet this burden by 'present[ing] evidence which, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff's case cannot be established.' [Citation.] 'Once the [defendant] has met that burden, the burden shifts to the [plaintiff] to show that a triable issue of one or more material facts exists as to the cause of action . . . .' [Citations.] A triable issue of material fact exists when 'the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' [Citation.]" (Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 287-288 (Webster).)
Our review of an order granting summary judgment is de novo. (Webster, supra, 26 Cal.App.5th at p. 288.)
DISCUSSION
Landlord argues the trial court wrongly concluded the 3-day notice failed to identify adequately the person to whom tenant's rent payment should be made. We disagree.
"Unlawful detainer is a summary proceeding to determine the right to possession of real property. Generally, in order to take advantage of this summary remedy, the landlord must demonstrate strict compliance with the statutory notice requirements contained in section 1161 et seq., including providing the tenant with three days' written notice to pay rent or quit the premises." (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744, 749; Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 Cal.5th 474, 480 [" 'statutory requirements' " for unlawful detainer proceedings " ' " 'must be followed strictly' " ' "].)
Section 1161, subdivision (2) governs the contents of the 3-day notice when a landlord wishes to evict a tenant because of "default in the payment of rent." A 3-day notice that does not "strictly compl[y]" with the requirements of section 1161, subdivision (2) is invalid. (Levitz Furniture Co. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4th 1035, 1038 (Levitz Furniture); see Foster v. Williams (2014) 229 Cal.App.4th Supp. 9, 14 [unlawful detainer judgment "must be reversed when it is based on a three-day notice which lacks the information required by Code of Civil Procedure section 1161, subdivision (2)"].) As relevant here, section 1161, subdivision (2) requires that the notice state "the amount that 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 person will be available to receive the payment . . . ."
The statutory language in section 1161, subdivision (2) in effect at the time landlord served the 3-day notice at issue in this case differed slightly, requiring that the notice state "the amount which is due" rather than "the amount that is due." (Italics added; see § 1161, former subd. (2) (Stats. 2008, ch. 440, § 3; Stats. 2009, ch. 244, § 5).) Other differences between the former and current versions of the statute are not relevant to our resolution of this appeal and we therefore do not address them.
The legislative history of this requirement indicates it was added in response to concerns raised by the Legal Aid Foundation of Los Angeles, which had "frequently encounter[ed] cases where the landlord has unilaterally changed the method of collecting or receiving rent payments from the tenant. In these cases, the tenant is unsure of whom to pay, and this confusion could lead to an unlawful detainer action." (Sen. Judiciary Com., Analysis of Sen. Bill No. 985 (2001-2002 Reg. Sess.) as amended April 2, 2001, p. 6.) Proponents of the requirement contended it "would protect both landlords and tenants alike, by setting forth clear rules for payment to whom and where." (Sen. Judiciary Com., Analysis of Sen. Bill No. 985, supra, at p. 7.)
Senate Bill No. 985 (Stats. 2001, ch. 729), which enacted the language at issue in this appeal as well as making other changes to section 1161, was focused primarily on residential tenancies. Indeed, apart from section 1161, every other statute added or amended by Senate Bill No. 985 expressly applies only to residential tenancies. (See Stats. 2001, ch. 729, §§ 1-5; Civ. Code, §§ 1946.1, 1954.52, 1962, 1962.5, 1962.7.) Nothing in the language of section 1161, however, limits the notice provisions of subdivision (2) to residential tenancies, nor does landlord make any such argument.
Landlord contends the 3-day notice at issue here sufficiently identified the "person to whom the rent payment shall be made" under section 1161, subdivision (2), but the theory upon which that contention is based is a moving target.
In its opening brief on appeal, landlord's primary argument, as it was in the trial court, is that "the name requirement is satisfied in the [3-day] Notice, [because] the 'name of the person to whom payment is to be made', i.e. H&M Konjoyan, is clearly stated in the Notice." Landlord again argues that a business entity may be a "person" under section 1161, subdivision (2).
Landlord also reasserts on appeal its alternative argument that, to the extent the statute requires the name of a natural person, "H & M Konjoyan is the natural person Craig G. Konjoyan," registrant of the fictitious business name.
Landlord adds a new argument on appeal, based on the language at the beginning of the 3-day notice stating, "you must pay the undersigned in full rent now due and unpaid." Landlord argues this refers to the natural person Carrie Konjoyan, who signed the notice as "agent and owner" of landlord. In its reply brief, landlord doubles down on this new argument, contending that, contrary to its position in its opposition papers below and its opening brief on appeal, H & M Konjoyan is not "the person to whom the rent payment shall be made," but rather "the business at whose address the payment should be delivered to Carrie Konjoyan."
Landlord's multiple, shifting arguments illustrate the flaw in the 3-day notice, namely that it cannot readily be determined from its language who "the person to whom the rent payment shall be made" is. The notice could be read to identify H & M Konjoyan as the "person," given the directive that "PAYMENT MUST BE MADE and delivered to H & M Konjoyan." The notice also could be read to identify Carrie Konjoyan as the "person," based on the language stating, "you must pay the undersigned." Because either interpretation is plausible, neither is clearly the correct one.
As discussed, the requirement that a 3-day notice identify "the person to whom the rent payment shall be made" is intended to prevent "confusion" over whom to pay. (See Sen. Judiciary Com., Analysis of Sen. Bill No. 985, supra, at p. 6.) Accordingly, the 3-day notice must "set[ ] forth clear rules for payment to whom and where." (Id. at p. 7.) The 3-day notice at issue here does not set forth clear rules. A tenant writing a check or addressing an envelope to mail that check would not know what name to list, and a tenant hand delivering the rent would not know whether delivery to any person at the address for H & M Konjoyan is sufficient, or whether it must instead be delivered specifically to Carrie Konjoyan.
Conceivably, a 3-day notice could be worded to identify more than one "person to whom the rent payment shall be made," making clear that payment to either would suffice. We need not decide whether such language would satisfy section 1161, subdivision (2), because the notice at issue here does not clearly indicate that both H & M Konjoyan and Carrie Konjoyan are appropriate recipients of the rent payment.
Landlord argues that tenant "has previously made payments to H&M Konjoyan and delivered them to the address on the Notice," and therefore tenant "knew exactly where and to whom to deliver the amount stated in the 3-Day Notice." Landlord cites no authority that a facially ambiguous 3-day notice may nonetheless be valid upon proof that it did not confuse a particular tenant. Nor does landlord's argument comport with the extensive case law mandating strict compliance with the requirements of section 1161. (See, e.g., Levitz Furniture, supra, 86 Cal.App.4th at p. 1038.)
In short, the 3-day notice failed to clearly identify "the person to whom the rent payment shall be made," and was invalid. The trial court appropriately granted summary judgment in favor of tenant. We need not and do not reach the questions of whether a business entity may be "the person to whom the rent payment shall be made," or whether H & M Konjoyan is the same as Craig Konjoyan for purposes of section 1161, subdivision (2). We also do not reach tenant's alternative argument that the notice overstated the amount of rent due.
DISPOSITION
The judgment is affirmed. Joz Knowz, Inc. (tenant) is awarded its costs on appeal.
We express no opinion on tenant's request for attorney fees, which may be addressed in the trial court.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J. We concur:
CHANEY, J.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------