gno.law

Bevill v. Zoura

California Court of Appeal · D018832 · 1994-08-11 · Published · 27 Cal. App. 4th 694 · 32 Cal. Rptr. 2d 635 · 94 Daily Journal DAR 11276 · 94 Cal. Daily Op. Serv. 6211 · 1994 Cal. App. LEXIS 831

S. JAMES BEVILL, Plaintiff and Respondent, v. LATIF ZOURA, Defendant and Appellant

Area
civil
Panel
Gilbert Nares (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:29Z · confidence high

The trial court ruled in favor of the landlord in an unlawful detainer action, awarding possession and back rent despite a three-day notice that demanded rent owed for more than one year. The Court of Appeal reversed the judgment, holding that the notice was fatally defective because it failed to strictly comply with statutory requirements and that the tenant did not waive the defect by failing to plead it as an affirmative defense.

Ruling reviewedStandardThe courtThe model
Validity of the three-day notice to pay rent or quit
“Bevill’s notice asked for $40,033.28, reflecting $17,932.70 in rent owed for more than one year. Bevill admitted at trial that he would not have accepted “anything less” than the $40,033.28 specified in the notice.”
de novoerroragree with court
agree with court
Waiver of the notice defect due to failure to plead as an affirmative defense
“Because Bevill was required to plead he had properly served a valid three-day notice and the facts constituting ineffective notice appeared on the face of the notice, Zoura was not required to plead his theory of ineffective notice as an affirmative defense.”
de novonot reachedagree with court
agree with court

Authorities

  • relied: Cal-American Income Property Fund IV v. Ho (1984) 161 Cal.App.3d 583 — A valid three-day notice is a prerequisite to an unlawful detainer action and must be served within one year after rent became due.
  • relied: Kwok v. Bergren (1982) 130 Cal.App.3d 596 — A notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements due to the summary nature of the action.
  • relied: Nourafchan v. Miner (1985) 169 Cal.App.3d 746 — A notice which demands rent in excess of the amount due does not satisfy the requirement to contain the amount which is due.
  • relied: Ernst Enterprises, Inc. v. Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355 — A notice which demands rent in excess of the amount due does not satisfy the requirement to contain the amount which is due.
  • relied: Valov v. Tank (1985) 168 Cal.App.3d 867 — The rule against over-demanding rent ensures the tenant has the opportunity to pay the delinquent rent to prevent an unlawful detainer action.
  • relied: State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721 — A party must raise an issue as an affirmative defense where the matter is not responsive to essential allegations of the complaint, but facts showing an essential allegation is not true are a traverse.
  • relied: Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477 — A three-day notice is not limited to rent per se; it may include any sums due under the lease, such as common area maintenance charges.

The appellate opinion: sound — The opinion correctly applies the strict compliance standard for unlawful detainer notices, citing established authority that a notice demanding more than one year's rent is invalid. It also correctly analyzes the pleading requirements, determining that the defect was apparent on the face of the notice and thus did not require an affirmative defense.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence high

The trial court entered judgment for landlord Bevill in a commercial unlawful detainer action, awarding possession, $21,958 in rent, and $5,469 in lease adjustments, after a three-day notice demanding $40,033.28 that included $17,932.70 in rent more than one year old. The Court of Appeal reversed, holding the notice was defective under Code of Civil Procedure section 1161, subdivision 2, because it demanded rent due more than one year before service, and that tenant Zoura did not waive the defect by failing to plead it as an affirmative defense since his denial of the amount due was a traverse of an essential allegation.

Ruling reviewedStandardThe courtThe model
Judgment for landlord in unlawful detainer based on a three-day notice that demanded rent due more than one year before service (and an amount in excess of what was recoverable in unlawful detainer).
“Accordingly, Bevill’s notice was insufficient to support the unlawful detainer action.”
de novoerror (law misapplied)agree with court
Section 1161, subdivision 2 requires the notice to state the amount due and to be served within one year after the rent became due; the notice on its face demanded $17,932.70 in rent more than a year old, Bevill admitted he would accept nothing less than the full sum, and Bevill conceded the defect on appeal. Under Cal-American v. Ho, Nourafchan, Ernst Enterprises and Valov, a notice overstating the amount due deprives the tenant of the opportunity to cure and cannot support unlawful detainer. The court correctly treated the question as one of law on undisputed facts.
Implicit rejection of landlord's contention that tenant waived defects in the three-day notice by failing to plead them as an affirmative defense (the trial court's judgment necessarily disregarded the defect raised in tenant's trial brief).
“Because Bevill was required to plead he had properly served a valid three-day notice and the facts constituting ineffective notice appeared on the face of the notice, Zoura was not required to plead his theory of ineffective notice as an affirmative defense.”
de novoerror (procedure)agree with court
Under Code of Civil Procedure section 431.30, subdivision (b)(2) and State Farm v. Superior Court, facts showing an essential allegation of the complaint is untrue are a traverse, not new matter. A valid notice is an element of the landlord's cause of action, the complaint alleged $40,033.28 was due, and Zoura denied that allegation as false; the defect also appeared on the face of the notice attached to the complaint and was argued in Zoura's trial brief, so there was no surprise or prejudice. The court's waiver analysis is consistent with the cited pleading authorities.
Inclusion of common area maintenance charges in the three-day notice (trial court treated these as properly demanded and awarded unpaid adjustments under the lease).
“Because paragraph 7b of the parties’ lease required Zoura to pay a portion of common area charges, Bevill’s inclusion of these unpaid amounts in the three-day notice was proper.”
de novocorrectagree with court
Canal-Randolph Anaheim v. Wilkoski holds a three-day notice may demand any sums due under the lease, not just rent per se; the lease required Zoura to pay a share of common area charges, so demanding them was proper. The court correctly rejected this argument in footnote 1, though the judgment was reversed on the one-year ground regardless.

Authorities

  • relied: Cal-American Income Property Fund IV v. Ho (1984) 161 Cal.App.3d 583 — A valid three-day notice is a prerequisite to unlawful detainer, and the notice must be served within one year after the rent became due; rent older than one year is recoverable only in an ordinary contract action.
  • relied: Kwok v. Bergren (1982) 130 Cal.App.3d 596 — Because unlawful detainer is a summary remedy, the landlord must strictly comply with statutory notice requirements for the notice to be valid.
  • relied: Nourafchan v. Miner (1985) 169 Cal.App.3d 746 — A three-day notice that demands rent in excess of the amount actually due does not satisfy section 1161, subdivision 2.
  • relied: Ernst Enterprises, Inc. v. Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355 — A notice overstating the amount of rent due is defective and will not support unlawful detainer.
  • relied: Valov v. Tank (1985) 168 Cal.App.3d 867 — The accurate-amount requirement ensures the landlord cannot regain possession unless the tenant has had a genuine opportunity to pay the delinquent rent.
  • relied: State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721 — Facts not put in issue by the complaint must be pleaded as affirmative defenses, but facts showing an essential allegation of the complaint is untrue are a traverse, not new matter.
  • relied: Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477 — A three-day notice is not limited to rent per se and may include any sums due under the lease.

The appellate opinion: sound — The opinion applies the plain text of section 1161, subdivision 2 and settled Court of Appeal authority to an undisputed and conceded defect, and resolves the waiver argument by correctly distinguishing a traverse from new matter under section 431.30 and State Farm. It also disposes of the tenant's weaker common-area-charge argument and the section 1161.1 estimate exception, leaving no material argument unanswered.

How this analysis was made · dispute it

Opinion — Nares

Opinion

NARES, J.

Landlord S. James Bevill prevailed in an unlawful detainer action against his tenant Latif Zoura. Zoura appeals, asserting defects in the three-day notice to pay rent or quit. We reverse the judgment.

Factual Background

In August 1989, Bevill, the owner of a Chula Vista shopping center, entered into a commercial lease agreement with Zoura. On November 25, 1992, Bevill served Zoura with a three-day notice to pay rent or quit. The three-day notice stated that Zoura owed $40,033.28 in rent and common area maintenance charges from April 1991 through November 1992. The notice specified that this total included $17,932.70 in rent owed between April 1991 and December 1991. Thus, Bevill requested rent owed more than one year before service of the notice.

After Zoura failed to vacate the premises pr pay the $40,033.28 within the three-day period, Bevill filed an unlawful detainer action. Bevill attached a copy of the three-day notice to the complaint. Bevill subsequently filed an amended complaint containing the same allegations as in the original complaint except that it referred to a second three-day notice served on December 7, 1992. It is undisputed that the two notices were identical.

In his answer, Zoura denied the allegations of the amended complaint and asserted several affirmative defenses, including that Bevill accepted rent after the three-day notice period expired and Bevill agreed to modify the lease requiring Zoura to pay only one-half of his rental obligation.

The court found in Bevill’s favor, awarding Bevill possession of the premises, $21,958 in rent payments from January 1, 1992, to the date of judgment, and $5,469 in unpaid adjustments owed under the lease.

*697 Discussion

Zoura contends the three-day notice to pay rent or quit was defective because it asked for more than one year’s rent. 1

A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action. (Code Civ. Proc., § 1161, subd. 2; Cal-American Income Property Fund IV v. Ho (1984) 161 Cal.App.3d 583, 585 [207 Cal.Rptr. 532].) Because of the summary nature of an unlawful detainer action, a notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements. (Kwok v. Bergren (1982) 130 Cal.App.3d 596 [181 Cal.Rptr. 795].)

A three-day notice must contain “the amount which is due.” (Code Civ. Proc., §1161, subd. 2.) A notice which demands rent in excess of the amount due does not satisfy this requirement. 2 {Id., § 1161, subd. 2; Nourafchan v. Miner (1985) 169 Cal.App.3d 746, 753 [215 Cal.Rptr. 450]; Ernst Enterprises, Inc. v. Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355, 359 [188 Cal.Rptr. 641].) This rule ensures that a landlord will not be entitled to regain possession in an unlawful detainer action unless the tenant has had the opportunity to pay the delinquent rent. (Valov v. Tank (1985) 168 Cal.App.3d 867, 872 [214 Cal.Rptr. 546].)

Additionally, a three-day notice to pay or quit must be served within “one year after the rent became due.” (Code Civ. Proc., § 1161, subd. 2; see Cal-American Income Property Fund IV v. Ho, supra, 161 Cal.App.3d at p. 585.) If a landlord waits over one year to sue for unpaid rent, the landlord is limited to collecting such rent in an ordinary breach of contract action, “with all the delays that remedy normally involves and without restitution of the demised property.” (Ibid.)

In this case, Bevill’s notice asked for $40,033.28, reflecting $17,932.70 in rent owed for more than one year. Bevill admitted at trial that *698 he would not have accepted “anything less” than the $40,033.28 specified in the notice. Zoura was therefore not given the proper opportunity to cure and prevent an unlawful detainer action. Accordingly, Bevill’s notice was insufficient to support the unlawful detainer action.

Bevill concedes that his three-day notice requested rent due for over one year and therefore was defective. He instead argues that Zoura waived his right to assert defects in the notice by failing to assert such matter as an affirmative defense.

Generally, a party must raise an issue as an affirmative defense where the matter is not responsive to essential allegations of the complaint. (See Code Civ. Proc., § 431.30, subd. (b)(2); State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725 [279 Cal.Rptr. 116]; 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 1004, pp. 425-426.) Thus, where a defendant relies on facts not put in issue by the plaintiff, the defendant must plead such facts as an affirmative defense. (State Farm Mut. Auto. Ins. Co., supra, 228 Cal.App.3d at p. 725.) “Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not ‘new matter,’ but only a traverse. [Citation].” (Ibid.)

Here, Bevill’s complaint alleged that “[a]t the time the 3-day notice to pay rent or quit was served, the amount of rent due was $40,033.28.” The three-day notice made clear that the $40,033.28 demand included rent owed more than one year before the three-day notice was served. In his answer, Zoura specifically denied as “false” Bevill’s assertion that $40,033.28 was due. Because Bevill was required to plead he had properly served a valid three-day notice and the facts constituting ineffective notice appeared on the face of the notice, Zoura was not required to plead his theory of ineffective notice as an affirmative defense.

In reaching this conclusion, we find it significant that at trial Bevill was fully apprised of the nature of Zoura’s defense. In his trial brief, Zoura specifically contended that the three-day notice improperly demanded rent for a period in excess of one year and cited authorities for the proposition that such demand rendered the three-day notice invalid. Bevill does not assert he was unfairly surprised or prejudiced by Zoura’s failure to raise the issue as an affirmative defense. On this record, Zoura did not waive his right to assert deficiencies in the three-day notice by failing to raise the issue as an affirmative defense.

*699 Disposition

Judgment reversed.

Huffman, Acting P. J., and Froehlich, J., concurred.

1

Zoura also says the notice was defective because it requested nonrent in the form of common area maintenance charges. The argument is without merit. A three-day notice is not limited to rent per se; it may include “any sums due under the lease.” (Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 492 [144 Cal.Rptr. 474].) Because paragraph 7b of the parties’ lease required Zoura to pay a portion of common area charges, Bevill’s inclusion of these unpaid amounts in the three-day notice was proper.

2

Where a commercial landlord “clearly identifies]” that the amount due is an estimate, the notice is not defective if the amount was “reasonably estimated.” (Code Civ. Proc., § 1161.1, subd. (a).) Bevill does not claim to come within this exception. We agree this rule is inapplicable here since Bevill’s notice did not state that the amount alleged to be due was an “estimate.”

Cites, in this corpus

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