Filed 10/23/17 Ark-Majiyagbe v. Carlin CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

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Jeremy Carlin filed an unlawful detainer complaint to recover possession of certain real property from Gabriel Ark-Majiyagbe. The trial court entered judgment in favor of Carlin. Ark-Majiyagbe subsequently filed a complaint to set aside the unlawful detainer judgment. The trial court sustained Carlin’s demurrer to Ark-Majiyagbe’s first amended complaint without leave to amend and entered judgment of dismissal.

Ark-Majiyagbe now contends the judgment must be set aside because the 60-day notice to quit that Carlin served on Ark-Majiyagbe did not comply with Code of Civil Procedure section 1161, and the notice failed to state that Ark-Majiyagbe could reclaim his personal property as required by Civil Code section 1946.1, subdivision (h).

We will affirm the judgment.

BACKGROUND

Because this case comes to us on a demurrer for failure to state a cause of action, we accept as true the properly pleaded material facts alleged in the challenged pleading and the contents of exhibits attached to that pleading and treat as surplusage allegations as to the legal effect of the exhibits. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6; Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 504-505.) We deny Ark-Majiyagbe’s motion to take evidence on appeal and to augment the trial record and we draw the following facts from the allegations of Ark-Majiyagbe’s first amended complaint and the contents of its exhibits.

Carlin was the sole borrower and trustor listed on a deed of trust for certain real property located in Calaveras County (property), securing a loan by Umpqua Bank. Carlin served Ark-Majiyagbe with a “60-day Termination Notice (Notice to Quit and Vacate Premises)” in relation to the property. The notice informed Ark-Majiyagbe and all other occupants of the property that they must surrender possession of the premises to Carlin within 60 days of service of the notice. The notice said failure to vacate would result in legal action to recover possession of the premises and added that the tenancy was being terminated because the tenant failed to pay rent on a timely basis, created waste of the property, and maintained junk, trash, garbage and debris, including non-operating unlicensed vehicles, on the property.

Carlin subsequently filed an unlawful detainer complaint against Ark-Majiyagbe alleging the following: Carlin was the owner of the property; Carlin and Ark-Majiyagbe verbally agreed that Ark-Majiyagbe would rent the premises as a month-to-month tenancy and Ark-Majiyagbe would pay rent of $1,000 monthly on the 25th of the month; Ark-Majiyagbe was served with a 60-day notice to quit; the notice included an election of forfeiture; and Ark-Majiyagbe did not comply with the requirements of the notice. Ark-Majiyagbe answered the complaint, claiming the 60-day notice and unlawful detainer complaint were retaliatory and discriminatory and the parties lacked the requisite landlord-tenant relationship. Ark-Majiyagbe alleged Carlin helped him purchase the property by obtaining a loan, but Ark-Majiyagbe paid all mortgage payments. Ark-Majiyagbe alleged he did not make rent payments to Carlin and was not a tenant, thus the unlawful detainer action was improper.

After a trial, the trial court found a landlord-tenant relationship existed between the parties and entered judgment in favor of Carlin.

Ark-Majiyagbe appealed the judgment to the appellate division of the superior court on grounds including that the 60-day notice was defective because it did not give Ark-Majiyagbe the alternative of curing the alleged breaches. The appellate division affirmed the judgment. Ark-Majiyagbe’s petition for rehearing with the appellate division was unsuccessful. Ark-Majiyagbe then filed a petition for transfer of the case to this court. We denied the petition as untimely.

Ark-Majiyagbe subsequently filed a complaint in equity to set aside the judgment. He alleged the trial court lacked subject matter jurisdiction because the notice to quit was defective. The trial court sustained Carlin’s demurrer without leave to amend and dismissed the action with prejudice.

DISCUSSION

Ark-Majiyagbe contends the judgment must be set aside because the 60-day notice to quit (A) did not comply with Code of Civil Procedure section 1161, and (B) failed to state that Ark-Majiyagbe could reclaim his personal property as required by Civil Code section 1946.1, subdivision (h). We address each contention in turn.

A

Ark-Majiyagbe contends the judgment must be set aside because the 60-day notice to quit did not comply with Code of Civil Procedure section 1161. That section requires the service of a three-day notice upon the tenant in certain circumstances. But a landlord may serve a notice under Civil Code section 1946.1 rather than under Code of Civil Procedure section 1161 to terminate a month-to-month residential real property tenancy. (California Landlord-Tenant Practice (2d ed Cal CEB) §§ 8.26, 9.4; California Eviction Defense Manual (2d ed Cal CEB) § 7.1; see Vavuris v. Pinelli (1957) 147 Cal.App.2d 390, 394; Palmer v. Zeis (1944) 65 Cal.App.2d Supp. 859, 860-862.) Civil Code section 1946.1 provides that a hiring of residential real property for a term not specified by the parties is deemed to be renewed as stated in Civil Code section 1945[1] unless the owner gives written notice of intent to terminate the tenancy at least 60 days prior to the proposed date of termination. (Civ. Code, § 1946.1, subds. (a), (b).)

Carlin’s notice to quit indicated his intent to terminate Ark-Majiyagbe’s tenancy in 60 days. The notice was proper under Civil Code section 1946.1. Civil Code section 1946.1 does not require the notice of termination to state that the tenant must comply with the terms of the rental agreement or quit, or that the tenant must cure the alleged waste to the property or quit. (Civ. Code, § 1946.1; see Palmer v. Agee (1978) 87 Cal.App.3d 377, 385.) The notice Carlin served on Ark-Majiyagbe stated the alleged reasons for terminating the tenancy; Civil Code section 1946.1 does not prohibit such a statement nor require the owner to provide additional advisories if such a statement is included. (Civ. Code, § 1946.1; Friedman, et al., Cal. Practice Guide: Landlord–Tenant (The Rutter Group 2016) ¶ 202-204, pp. 102-103.) Ark-Majiyagbe’s arguments regarding Code of Civil Procedure section 1161 lack merit.

B

Ark-Majiyagbe further argues the judgment must be set aside because the 60-day notice failed to state that Ark-Majiyagbe could reclaim his personal property as required by Civil Code section 1946.1, subdivision (h).

Civil Code section 1946.1, subdivision (h) provides, “Any notice given by an owner pursuant to this section shall contain, in substantially the same form, the following: [¶] ‘State law permits former tenants to reclaim abandoned personal property left at the former address of the tenant, subject to certain conditions. You may or may not be able to reclaim property without incurring additional costs, depending on the cost of storing the property and the length of time before it is reclaimed. In general, these costs will be lower the sooner you contact your former landlord after being notified that property belonging to you was left behind after you moved out.’ ” Subdivision (h) of Civil Code section 1946.1 was added in 2012, after Carlin served his 60-day notice on Ark-Majiyagbe and after the appellate division affirmed the trial court’s unlawful detainer judgment. (Compare Stats. 2009, ch. 347, § 1 with Stats. 2012, ch. 560, § 2.) Even if Ark-Majiyagbe’s claim is preserved for appellate review, any failure to comply with Civil Code section 1946.1, subdivision (h) did not invalidate the notice Carlin served on Ark-Majiyagbe because the asserted requirement was not enacted until 2012.

DISPOSITION

The judgment is affirmed.

/S/

MAURO, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

MURRAY, J.