DEBORAH A. COLLINS, State Bar No. 154532 S. LYNN MARTINEZ, State Bar No. 164406 _____________________
IN THE SOLANO COUNTY COURT OF THE STATE OF CALIFORNIA VALLEJO-BENICIA MUNICIPAL COURT
Defendant, RONAKEE AUSTIN, individually and not jointly with any other party to this action, hereby demurs to the entire unlawful detainer complaint herein on the following grounds: Demurrer to Complaint in Unlawful Detainer 1. The complaint fails to state facts sufficient to constitute a cause of action as plaintiff failed to serve the tenant with a 90-day notice of termination as required by California Civil Code § 1954.535. Code Civ. Proc. § 430.10(e). 2. The complaint is uncertain as to the terms and conditions of the tenancy in that the Complaint alleges at page 1, ¶5(e) that the written agreement is attached to the Complaint as Exhibit 1; however, the Assisted Lease Agreement attached to the Complaint is incomplete. Paragraphs 17 and 19 of the Lease Agreement refer to and incorporate by reference a HUD Lease Addendum, but that Addendum is not attached to the Lease Agreement or the Complaint. Code Civ. Proc. § 430.10(f). WHEREFORE, defendant prays that her demurrer be sustained without leave to amend, and for such other and further relief as the court deems just and proper. DATED: February 13, 2001 DEBORAH A. COLLINS S. LYNN MARTINEZ
By:________________________________________
DEBORAH A. COLLINS, State Bar No. 154532 S. LYNN MARTINEZ, State Bar No. 164406 _____________________
IN THE SOLANO COUNTY COURT OF THE STATE OF CALIFORNIA VALLEJO-BENICIA MUNICIPAL COURT
TO PLAINTIFF MICHAEL MCGINNIS AND HIS ATTORNEY OF RECORD: PLEASE TAKE NOTICE THAT the demurrer served and filed herewith has been set for hearing on March 15, 2001, at 1:30 p.m., or as soon thereafter as counsel can be heard, in Department 20 of this Court, located at 321 Tuolumne Street, Vallejo, CA 94590. Defendant's demurrer is based on this Notice and the attached Demurrer and Points and Authorities in Support of Defendant's Demurrer, and all papers and records on file in this action. DATED: February 13, 2001 S. LYNN MARTINEZ
By:________________________________________
Attorneys for Defendant DEBORAH A. COLLINS, State Bar No. 154532 S. LYNN MARTINEZ, State Bar No. 164406 _____________________
IN THE SOLANO COUNTY COURT OF THE STATE OF CALIFORNIA
VALLEJO-BENICIA MUNICIPAL COURT
INTRODUCTION Effective January 1, 2000, state law requires that an owner subject to a government-subsidized rental contract must give the tenant a minimum 90 days' written notice before terminating or failing to renew its contract with the government agency. See Calif. Civ. Code § 1954.535. Plaintiff is such an owner, and defendant is a participant in the federally-subsidized Housing Choice Voucher Program ("Section 8 Voucher Program") administered by the Benicia Housing Authority. The instant Complaint fails to allege issuance of the required 90-day notice and hence fails to allege sufficient facts to constitute a cause of action in unlawful detainer. The Complaint also is uncertain because it fails to include a mandatory HUD Lease Addendum to the Assisted Lease Agreement which is attached to the Complaint. The complaint is therefore subject to demurrer. Although the Complaint may be capable of amendment to correct the uncertainty objection, the inadequate notice of termination renders the complaint fatally flawed. Accordingly, the defendant's demurrer must be sustained without leave to amend. RELEVANT FACTS The instant complaint is an unlawful detainer action arising under state law. The plaintiff and defendant are participants in the Section 8 Voucher program, by which a portion of defendant's monthly rental payment to plaintiff is subsidized by the U.S. Department of Housing & Urban Development ("HUD") pursuant to a Housing Assistance Payments ("HAP") Contract between the Benicia Housing Authority ("BHA") and plaintiff. (Complaint, Exhibit 1, ¶¶1, 3; see also "HAP Contract Amendment" attached to Complaint, Ex. 1.) Plaintiff has entered into a contract with BHA and an Assisted Lease Agreement with defendant which set forth the terms and conditions of plaintiff's participation in the Section 8 program, including specific rent limitations. (Id.) Defendant Ronakee Austin is the beneficiary of the contract. (Id.) The Complaint seeks relief based on the service and expiration of a "60-day notice to quit". (Complaint, ¶6(a)(3); Ex. 2.) The Complaint contains no allegations that a 90-day notice of termination required under state law was served on defendant nor that such notice term has expired. Plaintiff further alleges that the written lease agreement is attached to the Complaint (Complaint, ¶5(e)), but only a portion of the mandatory written agreement is attached. (See Complaint, Ex. 1.) The HUD Lease Addendum referred to in paragraphs 17 and 19 of the Assisted Lease Agreement is not attached to the Complaint.
California Code of Civil Procedure Section 430.10 provides in relevant part:
(f) The pleading is uncertain. . . . A defendant in an unlawful detainer action may demurrer to the Complaint. Code of Civil Procedure § 1170. An objection to a complaint may be taken by demurrer when the ground for such objection appears on the face of the Complaint. Code of Civil Procedure § 430.30(a). Here, the grounds for the objection appear on the face of the Complaint, as the Complaint fails to allege compliance with fundamental notice requirements and is uncertain in that the written Assisted Lease Agreement attached to the Complaint is incomplete.
Strict compliance with statutes providing for the remedy of unlawful detainer is mandatory. Kwok v. Bergen (1982) 130 Cal. App.3d 596. As noted by the court in Kwok,
Id. at 599-600 (emphasis added). Thus, strict compliance with the specifically prescribed notice conditions is a prerequisite to invoking the summary procedures of unlawful detainer. Lamey v. Masciotra (1969) 273 Cal.App.2d 709, 713. Because of the special summary and statutory nature of the proceeding, the law and pleadings are strictly construed in favor of the defendant. Baugh v. Consumers Associates, Ltd. (1966) 241 Cal.App.2d 672, 674, 50 Cal.Rptr. 822.
Code of Civ. Proc. § 1166 provides that the "plaintiff, in his complaint, . . . must set forth the facts on which he seeks to recover." The plaintiff's complaint must allege compliance with applicable statutory notice requirements. See Delta Imports, Inc. v. Muni. Ct. of Los Angeles (1983) 146 Cal. App. 3d 1033, 1036. Where, as here, the defendant is a Section 8 Voucher participant, those notice requirements include Civil Code § 1954.535. Civil Code § 1954.535 provides that when an
Calif. Civ. Code § 1954.535 (added Stats. 1999, Ch. 590). In the Section 8 Voucher Program, HUD pays rental subsidies for eligible families to permit the families to afford decent, safe and sanitary housing. 24 C.F.R. §982.1(a), a copy of which is attached hereto as Exhibit A pursuant to Cal. Rules of Court, rules 311(e), 313(f). The rental subsidies are administered locally through public housing agencies. Id. A Section 8 Voucher landlord is required to comply with state and local laws when terminating the tenancy. 24 C.F.R. §982.310(e)(2), attached hereto as Exhibit B; see also Complaint, Ex. 1, ¶¶7, 12. When a landlord terminates a Section 8 tenancy, the contract between the landlord and the housing authority also terminates. See 24 C.F.R. 982.451(a)(2), attached hereto as Exhibit C. Therefore, where the plaintiff seeks to terminate a Section 8 tenancy, the landlord must comply with the notice requirements of Civil Code § 1954.535. To state a cause of action in unlawful detainer, the complaint must allege compliance with this statutory notice requirement. See Kwok v. Bergen (1982) 130 Cal. App.3d 596, 599-600. In the instant case, the Complaint fails to state compliance with Civil Code § 1954.535. The Complaint contains no allegation regarding service of a 90-day notice of termination or that such period has expired. To the contrary, the Complaint alleges only that a "60-day notice to quit" was served on the defendant, and that the term of such 60-day notice expired on February 1, 2001. (Complaint, ¶6; see also Complaint, Ex. 2.) Accordingly, plaintiff's Complaint is properly demurrable. Moreover, a defect in a required notice to terminate cannot be cured by amendment. "Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law." Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436. Accordingly, the demurrer must be sustained without leave to amend. III. PLAINTIFF'S FAILURE TO ATTACH THE ENTIRE WRITTEN LEASE AGREEMENT RENDERS THE COMPLAINT UNCERTAIN. Where a copy of the lease which is attached to the complaint is inconsistent in any manner with the pleading, a special demurrer on the grounds of uncertainty is warranted. Code Civ. Proc. §430.10(f); see also CEB Eviction Defense Manual, § 13.12. Here, plaintiff alleges in his verified Complaint that the parties entered into a written agreement which was later modified to reduce defendant's share of the rent, and alleges that the written agreement is attached to the Complaint. (Complaint, ¶5.) An Assisted Lease Agreement and Housing Assistance Payments Contract Amendment are attached to the Complaint as Exhibit 1. However, the HUD Lease Addendum referred to in paragraphs 17 and 19 of the Assisted Lease Agreement are not attached to the Complaint. The HUD Lease Addendum is a mandatory part of the Agreement. See 24 C.F.R. §§982.308(b), (f), attached hereto as Exhibit D. Moreover, the Addendum is incorporated by reference in the Agreement. (Complaint, Ex. 1, ¶19.) Without the Addendum, the terms and conditions of the written agreement are incomplete and uncertain, precluding defendant from raising all relevant defenses. Therefore, the demurrer on the grounds of uncertainty should be sustained. CONCLUSION The Complaint is subject to demurrer because it fails to allege sufficient facts to constitute a cause of action and is uncertain. Since plaintiff's failure to provide the prerequisite 90-day notice is incurable, the demurrer must be sustained without leave to amend.
DEBORAH A. COLLINS
S. LYNN MARTINEZ By:________________________________________ Deborah A. Collins Attorneys for Defendant
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