Nature of Proceedings: Demurrer to First Amended Complaint
TENTATIVE RULING: Defendant’s demurrer to plaintiff’s first amended complaint for unlawful detainer is overruled. Defendant shall file and serve his answer to the complaint on or before April 11, 2018.
This is an action for unlawful detainer. On May 26, 2017, plaintiff People’s Self Help Housing Corporation agreed to rent residential property located at 24 East Victoria Street, Unit 30, Santa Barbara, California to defendant Ronald Caldwell for $900.00 per month. Defendant is a Section 8 tenant and pursuant to the Section 8 housing assistance contract entered into between plaintiff and the Housing Authority of the City of Santa Barbara, defendant was required to pay $455.00 of the $900.00 rent every month, with the $445.00 balance being paid by the Housing Authority. Defendant has failed to pay any portion of the rent since September 2017 and on January 31, 2018, plaintiff caused a 3-day notice to pay rent or quit to be served on defendant by posting a copy of the notice on the premises and thereafter mailing a copy to defendant. Defendant failed to cure the default within the time specified in the notice and on March 8, 2018, plaintiff filed its first amended complaint for unlawful detainer against defendant.
Defendant now demurs to the amended complaint on the ground that it fails to state facts sufficient to constitute a cause of action and is uncertain.
The legal authority for a demurrer is found in Code of Civil Procedure Section 430.10, which provides, in relevant part:
“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one of the following grounds:
“(e) The pleading does not state facts sufficient to constitute a cause of action.
“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.”
A demurrer can be used only to challenge defects that appear on the face of the complaint or from matters outside the complaint that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Insurance Company (2004) 116 Cal.App.4th 968, 994. In reviewing the sufficiency of a cause of action against a demurrer, the court assumes the truth of all facts properly pleaded. Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558. The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.
Defendant contends that the amended complaint fails to state a cause of action and is uncertain because, while the written rental agreement between plaintiff and defendant is attached as Exhibit 1 to the complaint, portions of the Housing Assistance Program (“HAP”) contract are missing. To support his claim that the complaint is deficient, defendant cites Code of Civil Procedure Section 1166. However, where an unlawful detainer action arises solely for non-payment of rent, the plaintiff is not required to attach the written rental agreement. Code of Civil Procedure Section 1166, subdivision (d), specifically provides:
“(d)(1) In an action regarding residential property, the plaintiff shall attach to the complaint the following:
“(A) A copy of the notice or notices of termination served on the defendant upon which the complaint is based.
“(B) A copy of any written lease or rental agreement regarding the premises. Any addenda or attachments to the lease or written agreement that form the basis of the complaint shall also be attached. The documents required by this subparagraph are not required to be attached if the complaint alleges any of the following:
“(i) The lease or rental agreement is oral.
“(ii) A written lease or rental agreement regarding the premises is not in the possession of the landlord or any agent or employee of the landlord.
“(iii) An action based solely on subdivision (2) of Section 1161.”
An action based solely on subdivision (2) of Section 1161 is one which arises “[w]hen [the tenant] continues in possession, in person or by subtenant, without the permission of his or her landlord . . . after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days’ notice, in writing, requiring its payment . . . shall have been served upon him or her.” Code Civ. Proc. §1161, subd. (2).
Here, the unlawful detainer action arises solely from defendant’s failure to pay rent and therefore plaintiff was not required to attach to the amended complaint either the lease or the HAP contract.
Defendant next argues that the amended complaint is deficient because plaintiff failed to attach a copy of the Tenancy Addendum, which allegedly is part of the HAP contract. To support this claim, defendant has attached to his demurrer as an exhibit a “sample” Tenancy Addendum, purportedly issued by the U.S. Department of Housing and Urban Development. (Dem., Ex. B.) However, a demurrer can be used only to challenge defects that appear on the face of the complaint or from matters outside the complaint that are judicially noticeable. Blank v. Kirwan, supra, 39 Cal.3d 311, 318. There is nothing on the face of the amended complaint which references a “Tenancy Addendum,” nor is the “sample” document that is attached to defendant’s demurrer subject to judicial notice, and therefore the demurrer fails.
For the reasons stated above, defendant’s demurrer to the amended complaint will be overruled. Defendant shall file and serve his answer to the complaint on or before April 11, 2018.