Lee v. Kotyluk

• Decision Date: 07 January 2021
• Docket Number: G058631
• Citation: 59 Cal.App.5th 719,274 Cal.Rptr.3d 29
• Court: California Court of Appeals Court of Appeals
• Parties: Johnny Ki LEE et al., Plaintiffs and Appellants, v. Sean KOTYLUK, Defendant and Respondent.

59 Cal.App.5th 719

274 Cal.Rptr.3d 29

Johnny Ki LEE et al., Plaintiffs and Appellants,

v.Sean KOTYLUK, Defendant and Respondent.

G058631

Court of Appeal, Fourth District, Division 3, California.

Filed January 7, 2021

Certified for Partial Publication.^*

Niddrie Addams Fuller Singh, John S. Addams, San Diego; Smith & Silbar and Rachelle Singer, Irvine, for Plaintiffs and Appellants.

Peirano & Associates, Inc., Cristian L. Peirano, Sean Raymond Bozarth, Santa Ana, and Tom N. Yacko for Defendant and Respondent.

OPINION

MOORE, ACTING P. J.

This case requires us to get into the weeds of the unlawful detainer statute.

Plaintiffs Johnny Ki Lee and Un Joong Lee sought to evict a commercial tenant, defendant Sean Kotyluk, for selling marijuana without a license. They filed an unlawful detainer action against him based on Code of Civil Procedure section 1161, subdivision (3).¹ On the eve of trial, defendant filed a motion in limine requesting judgment on the pleadings. He claimed plaintiffs' three-day notice (the notice) was defective because it was served on June 4, 2019, but plaintiffs had not become owners of the property until June 20, 2019. In response, plaintiffs explained that the prior owner of the property, Rosemarie Haynes, had served the notice before transferring ownership of the property to them. The trial court granted judgment on the pleadings because the notice was issued prior to plaintiffs obtaining ownership of the property and because the notice failed to identify the party to whom defendant could return possession of the property. The court also denied plaintiffs leave to amend. Plaintiffs' appeal raises two questions of first impression, which we address in the published portion of this opinion.

First, can a property owner file an unlawful detainer action under section 1161, subdivision (3), based on a notice served by its predecessor in interest? We conclude the answer is yes. Nothing in the text of section 1161 prevents a successor owner from doing so. Nor does such a procedure undermine the purpose of the notice requirement in subdivision (3), which is primarily designed to give the tenant an opportunity to cure the breach and retain possession of the property.

Second, must a notice under section 1161, subdivision (3) identify the person to whom the tenant can turn over possession of the property if the tenant chooses to quit? We find this is not required by the statute. Based on our reading of this subdivision, it appears the Legislature purposefully chose not to include such a requirement. Subdivision (2) of section 1161 requires a notice to contain very detailed instructions as to how a tenant can pay past due rent. In comparison, nothing in section 1161 requires a notice to contain any specific information as to how a tenant can restore possession of the property to the owner. This contrast suggests the Legislature purposely chose not to require that a notice contain such information. Given the cardinal rule that courts should not add provisions to a statute, we decline to read any such general requirement into section 1161, subdivision (3). (See People v. Guzman (2005) 35 Cal.4th 577, 587, 25 Cal.Rptr.3d 761, 107 P.3d 860.)

Based on these conclusions, we find the trial court properly granted the motion seeking judgment on the pleadings because nothing in the complaint or its attachments indicated that Haynes, rather than plaintiffs, served the notice. But the court abused its discretion by denying plaintiffs leave to amend to add this allegation and thus we reverse the judgment.²

IFACTS AND PROCEDURAL HISTORY

Plaintiffs filed a form unlawful detainer complaint against defendant on June 28, 2019, alleging they were the owners of certain commercial property in Lake Forest that defendant was unlawfully possessing.

Defendant was allegedly using the property to sell unlicensed marijuana. Plaintiffs claimed this violated a section of the lease requiring the property to be used "only for the primary operation of a retail store selling Crystals & Gems, Candles, Incense & Oils, Greeting Cards, New & Used Books, and related items."

The complaint specified that defendant had entered into the subject lease with plaintiffs' predecessor in interest. A copy of the lease was attached to the complaint and identified defendant's landlord as the "Living Trust of Rosemarie S. Haynes." The complaint also alleged that defendant was served with the notice on June 4, 2019, and that it expired on June 7. The notice was signed by attorney Rachelle Singer as "Attorney for Landlord" and contained Singer's contact information. It did not specify the identity of the landlord. Nor did the complaint identify the specific party that had served the notice.

Defendant initially filed a demurrer to the complaint, which was overruled. He later filed a motion for summary judgment, which was denied. Then, a week before trial, defendant filed a "Motion in Limine Number 1 for Judgment on the Pleadings." The motion contended the notice was defective because plaintiffs did not own the property when it was served. Specifically, the notice had been served on June 4, 2019, and expired on June 7, but plaintiffs did not obtain ownership of the property until June 20, 2019.

Plaintiffs' opposition clarified that they had not served the notice. Rather, it had been served by the prior owner of the property, Haynes, on June 4, 2019. Haynes then sold the property to plaintiffs who recorded the grant deed on June 20, 2019, and then filed this unlawful detainer lawsuit on June 28, 2019. Plaintiffs maintained the notice was valid and that they could file an unlawful detainer action based upon it.

The motion was heard on October 8, 2019. Although the motion was styled as a motion in limine, the court exercised its discretion to hear it as a motion for judgment on the pleadings. At the start of oral argument, the trial court appeared unaware of plaintiffs' contention that Haynes had served the notice. In orally presenting its tentative ruling, the court framed the relevant issue as "whether a plaintiff who is not the owner of the property can issue or cause to be issued a three-day notice that expires – that also expires prior to them becoming the owners." It then tentatively concluded that "at the time that the notice was issued, there was no landlord-tenant relationship between the plaintiff[s] and the defendant." Thus, the notice was invalid.

After hearing the tentative ruling, plaintiffs reiterated that Haynes, not plaintiffs, had served the notice. In response, the trial court stated that nothing in the complaint or the notice stated that Haynes had served it. Further, the court explained the proper procedure would have been for Haynes to file the lawsuit upon expiration of the notice and then amend her complaint after the sale to add plaintiffs as a party. The court also found the notice was defective because it did not identify the person to whom defendant could return possession of the property (which had not been raised by either party). Plaintiffs' request for leave to amend was denied, as the court found the defective notice could not be cured. The minute order issued after oral argument stated that "the notice [is] defective as it was issued prior to [plaintiffs] owning the subject premises. The notice also lacks any information as to whom to turn possession over to."

Judgment was entered in favor of defendant and against plaintiffs on October 16, 2019. The judgment erroneously stated that it had been made after trial and that the court had considered plaintiffs' testimony and evidence. Plaintiffs moved to set aside or vacate the judgment so that a correct judgment could be entered. That motion was granted, and the trial court entered an amended judgment on November 15, 2019, which the plaintiffs appealed. After they filed their notice of appeal, the trial court awarded defendant $25,794 in attorney fees and $1,445 in costs. Attorney fees were awarded under paragraph 31 of the lease, which allows the prevailing party to recover such fees. Costs were awarded to defendant as the prevailing party under section 1032.

IIDISCUSSION

A.–B.^**

C. Merits of the Motion

" ‘A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.’ [Citation.] As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.’ " ( Eckler v. Neutrogena Corp. (2015) 238 Cal.App.4th 433, 439, 189 Cal.Rptr.3d 339.) To withstand such a motion, "it is not enough that [plaintiffs] could assert a viable theory. ‘A [motion for judgment on the pleadings] tests the legal sufficiency of factual allegations in [the] complaint. ’ " ( JPMorgan Chase Bank, N.A. v. Ward (2019) 33 Cal.App.5th 678, 689, 245 Cal.Rptr.3d 303.)

A trial court's decision on a motion for judgment on the pleadings is reviewed de novo. ( People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777, 174 Cal.Rptr.3d 626, 329 P.3d 180.) For the reasons below, we find the trial court properly granted the motion but erred by failing to allow plaintiffs leave to amend the complaint.

1. Failure to identify the party to receive possession

We first examine the trial court's finding that the notice was defective because it failed to identify the party to whom defendant could turn over possession of the property. We are unaware of any authority on this issue outside the text of the statute. Likewise, neither party was able to find any case law on this specific issue. After reviewing the statute, we find that a notice provided under section 1161, subdivision (3) need not contain this information.

" ‘Our role in interpreting statutes is to ascertain and effectuate the intended legislative purpose. [Citations.] We begin with the text, construing words in their broader statutory context and, where possible, harmonizing provisions...