Lara v. Menchini

Filed 9/3/21
CERTIFIED FOR PUBLICATION

APPELLATE DIVISION OF THE SUPERIOR COURT

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

ADAIR LARA, as Trustee, etc., CUD-19-664421

Plaintiff and Respondent,

v.

PETER MENCHINI et al., OPINION

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of San
Francisco County, Suzanne R. Bolanos, Judge. Affirmed.
Law Offices of Robert De Vries, Robert De Vries, for
Defendants and Appellants.
Steven Adair MacDonald & Partners, Steven A.
MacDonald, Jethro S. Busch, and Anna Y. Liu, for Plaintiff and
Respondent.
_____________________________
 After a bench trial, the trial court found appellants guilty of
unlawful detainer. Appellants argue that the judgment should be
reversed because the three-day notice to pay rent or quit was
defective insofar as it did not allow them, as subtenants, to pay
the tenant’s rent and cure the tenant’s default. After considering
the record, arguments, and applicable law, we AFFIRM.

I. FACTS AND PROCEDURAL HISTORY
In 2002, respondent Adair Lara bought a six-unit Victorian
house at 888/898 14th Street in the city of San Francisco. One of
the units is 894 14th Street, which was leased by the previous
owner to Peter Menchini in 1995. Lara inherited this lease when
she purchased the house. Menchini paid rent to Lara. Rent was
due on the 5th day of each month.
On November 1, 2016, appellant Larysa Bogachyk Volynets
moved into 894 14th Street. Volynets wrote a $720 check for
Menchini once a month for rent, and placed it on the fridge.
On April 1, 2017, appellant Kevin Bard moved into 894
14th Street. Bard also wrote $720 checks monthly for Menchini,
and placed them on the fridge.
On January 1, 2019, appellant Allison Matamoros moved
into 894 14th Street.
Menchini did not pay rent in December 2018. Bard and
Volynets went that month to the Q Foundation, which provides
rental assistance, “to set up a third-party payment process . . . so
that Mr. Menchini could pay his December rent.” Lara accepted
a third-party rental assistance check from the Q Foundation for
Menchini’s December rent. (See Civ. Code, § 1947.3, subd. (a)(3).)
Menchini himself paid rent for January 2019.
Menchini did not pay rent in February 2019 or March 2019.
Rent was $2,882.01 per month, so Menchini owed $5,764.02.

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 In February 2019, four other people lived with Menchini:
Tuyen Alexandria Doan, Allison Matamoros, Kevin Bard, and
Larysa/David Bogachyk Volynets. The record is silent as to the
date that Doan moved in, but Doan moved out prior to this
unlawful detainer action. The four of them asked Menchini to
cash their checks and pay rent to Lara.
Bard is not on the lease; Lara has never met him or
accepted rent from him. Volynets is not on the lease; Lara has
never met him or accepted rent from him.
On February 16, 2019, Volynets emailed Lara that he and
Matamoros, Bard, and Duan “left their checks for Mr. Menchini,
but he hasn’t deposited them[.]”
On February 28, 2019, Lara emailed Volynets and the
others that they needed to move out by April 1.
On March 15, 2019, Lara emailed Matamoros, Volynets,
Bard, and Duan: “The rent [is] in arrears, so a pay rent or quit
notice will appear on the door to 894 on April 1. With Peter gone,
I will offer the four of you the flat at market rate, $7,200.”
On March 15, 2019, Bard advised Lara in an email that
“the checks for Peter were still on the fridge, but he didn’t deposit
the money.” On the same day, Volynets asked Lara in an email:
“Why . . . don’t [you] ask Peter to pay the rent? This seems to be
his duty and he has our money.”
On March 22, 2019, Menchini was served with a three-day
notice to pay rent or quit. Volynets was also personally served
with several copies of the notice, three of which he gave to the
other occupants. Menchini did not pay rent, and he did not move
out. The three-day notice to pay rent quit or quit stated that
$5,764.02 in rent for February and March 2019 was due, and that
“PETER MENCHINI is the only authorized tenant at the

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Premises. All other occupants are not tenants nor co-tenants of
Landlord, and do not have a direct[] landlord-tenant relationship
with Landlord. Therefore, Landlord will only accept payment of
rent from PETER MENCHINI and no other persons.” The three-
day notice also stated: “the Lessor does hereby elect to declare the
forfeiture of your lease or rental agreement under which you hold
possession of the above-described premises, if you fail to pay the
amount of rent demanded above.”
On March 24, 2019, Lara met with Volynets and
Matamoros. Lara told them that she could not accept their
checks; she could only accept payment from Menchini.
On March 28, 2019, Lara filed an unlawful detainer
complaint (Code Civ. Proc., § 1161, subd. 2) against Peter
Menchini, Allison Matamoros, Kevin Bard, Tuyen Alexandria
Doan, and Larysa Bogachyk Volynets. The complaint and
summons were properly served upon all parties.
On April 1, 2019, Lara received checks from Volynets,
Matamoros, and Bard. The checks were “[f]or the month of
April.”
On April 2, 2019, Menchini moved out. On the same day,
Lara emailed Volynets and Matamoros that she had received
their checks, but discarded them. “You are staying on illegally,”
Lara wrote. Lara testified that she discarded the checks
“[b]ecause I wasn’t going to deposit them—they’re not my
tenant.” Lara testified that if she accepted their checks, “[t]hat
would have created an instant tenancy with subtenants at Peter’s
old rent.”
On April 3, 2019, appellants demurred, arguing that “the
Complaint fails to state facts sufficient to constitute a cause of
action for unlawful detainer because the underlying rent notice

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fails to allow the subtenants to pay the demanded rent pursuant
to Civil Code §1947.3 and therefore the underlying rent notice
does not meet the statutory requirements of Code of Civil
Procedure §1161(2).”
On May 2, 2019, the trial court overruled the demurrer.
On June 7, 2019, the trial court granted Lara’s request to
dismiss Menchini and Doan as defendants, since they moved out
prior to trial.
The three-day bench trial took place on June 26, 2019, July
1, 2019, and July 2, 2019. Matamoros did not appear at the
bench trial. During the trial, Bard testified that Matamoros “is
in Hawaii right now.”
On September 18, 2019, the trial court issued a statement
of decision and entered judgment in favor of Lara. “Plaintiff has
met all of the necessary elements and satisfied Plaintiff’s burden
to establish a cause of action for unlawful detainer based on non-
payment of rent,” the trial court found. “Defendant Peter
Menchini failed to cure the Three (3) Day Notice to Pay Rent or
Quit and did not timely pay the rent owed by March 25, 2019 for
the months of February 2019 and March 2019 and continued to
occupy the property. ¶ As a result, Plaintiff’s lease with
Defendant master tenant Peter Menchini was forfeited. . . . ¶
There is no privity of contract between any subtenants, including
ALLISON MATAMOROS, KEVIN D. BARD, and DAVID
BOGACHYK VOLYNETS, sued as LARYSA BOGACHYK
VOLYNETS. ¶ After the forfeiture of master tenant Defendant
Peter Menchini’s lease, the Defendants have no legal right to
remain in possession.”
On September 26, 2019, the trial court denied appellants’
motion for a new trial.

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 Appellants timely filed a notice of appeal.

II. DISCUSSION
Appellants Allison Matamoros and Larysa aka David
Bogachyk Volynets1 argue that the unlawful detainer judgment
must be reversed because the three-day notice to pay rent or quit
was defective insofar as it did not allow them, as Menchini’s
subtenants, to pay his rent and cure his default. We disagree.
Appellants’ briefing on appeal nowhere states the
applicable standard of review. Respondent points out that
factual findings are reviewed for substantial evidence, but
appellants’ argument regarding the three-day notice is not based
on the trial court’s findings of fact. We review the trial court’s
findings of fact for substantial evidence, and we independently
review the trial court’s conclusions of law. (Haraguchi v.
Superior Court (2008) 43 Cal.4th 706, 711-712; see Foreman &
Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [“ ‘When a finding
of fact is attacked on the ground that there is not any substantial
evidence to sustain it, the power of an appellate court begins and
ends with the determination as to whether there is any
substantial evidence contradicted or uncontradicted which will
support the finding of fact.’ [Citation.]”].)
A tenant of real property is guilty of unlawful detainer
“[w]hen the tenant continues in possession, in person or by
subtenant, without the permission of the 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

1Kevin Bard, Peter Menchini, and Tuyen Alexandria Doan are
not parties to this appeal.

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served upon the tenant and if there is a subtenant in actual
occupation of the premises, also upon the subtenant.” (Code Civ.
Proc., § 1161, subd. 2.)
A subtenant’s rights “are dependent upon and subject to
the sublessor’s rights. . . . [R]ights under the sublease stand or
fall with those of the sublessor. . . .” (Fifth & Broadway
Partnership v. Kimny, Inc. (1980) 102 Cal.App.3d 195, 201; accord
Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195
Cal.App.3d 1032, 1065.) “‘The rights of a subtenant are
terminated, and the master landlord is entitled to possession,
when the master lease is terminated because of the tenant’s
default in the performance of his or her obligations.’ [Citation.]”
(Syufy Enterprises v. City of Oakland (2002) 104 Cal.App.4th
869.) Only when a tenant voluntarily surrenders its estate to the
landlord can a subtenant maintain possession. (Northridge
Hospital Foundation v. Pic ‘N’ Save No. 9, Inc. (1986) 187
Cal.App.3d 1088, 1094-1095.) “ ‘Thus, if the original tenant has
incurred a forfeiture of his lease, and for that reason the landlord
annuls the lease, the landlord is entitled to the possession as
against the sublessee.’ ” (Herman v. Campbell (1948) 86
Cal.App.2d 762, 766.)
Appellants argue that “subtenants in actual possession
must be served with three-day notices to pay rent or quit directed
to them giving them an opportunity to cure the default by paying
the rent.” For this proposition, appellants rely on Four Seas Inv.
Corp. v. International Hotel Tenants’ Assn. (1978) 81 Cal.App.3d
604, 611 [“the Legislature did intend to distinguish between
notice requirements on subtenants as opposed to tenants, the
intent clearly being to provide an opportunity for a subtenant to
cure his tenant’s default except where, as here, the default is

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incurable because the term has expired”], Fifth & Broadway
Partnership v. Kimny, Inc., supra, 102 Cal.App.3d at p. 202 [“The
purpose of the statutory requirement of notice is to give the
tenant, or the subtenant in actual possession, the opportunity to
pay the rent and thereby retain possession”] and Briggs v.
Electronic Memories Magnetics Corp. (1975) 53 Cal.App.3d 900,
904-905 [“landlord did not serve subtenant with a three-day
notice to pay rent or quit. Merely providing subtenant with a
copy of the notice directed to and served on tenant is not
sufficient, since it merely demands that tenant pay rent or quit,
not that subtenant do so”]. While some language in these cases
supports appellants’ argument, when read in context and applied
to the facts here, the cases do not support appellants’ argument.
Two of the cases are distinguishable because the landlord
accepted or demanded rent directly from the subtenant. In
Briggs v. Electronic Memories Magnetics Corp., supra, 53
Cal.App.3d 900, the landlord accepted rent directly from the
subtenant. (Id. at p. 903.) In Fifth & Broadway Partnership v.
Kimny, Inc., supra, 102 Cal.App.3d 195, the landlord demanded
rent directly from the subtenant. (Id. at pp. 201-202.) The third
case undermines appellant’s argument: in Four Seas Inv. Corp. v.
International Hotel Tenants’ Assn., supra, 81 Cal.App.3d 604, the
landlord did not serve the subtenants, and the Court of Appeal
concluded that the landlord was not required to serve the
subtenants: “Code of Civil Procedure section 1161 requires notice
to terminate on the tenant only and not upon subtenants, who
were not parties to the month-to-month tenancy.” (Id. at p. 611.)
Here, there is nothing in the record which would support a
finding that the landlord, Lara, accepted or demanded rent from
the subtenants. If Lara had accepted rent from the subtenants,

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she may have thereby created a new tenancy with them at
Menchini’s monthly rate of $2,882.01. “A tenancy may be created
by consent and acceptance of rent, despite the absence of a lease.
[Citation.]” (Cobb v. San Francisco Residential Rent
Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, 352
[new tenancy created when landlord accepted rent from
subtenant after original tenant moved out of the unit]; accord
Parkmerced Co. v. San Francisco Rent Stabilization &
Arbitration Bd. (1989) 215 Cal.App.3d 490, 494-495.) The record
similarly does not support a finding that the landlord waived the
sublease prohibition. “[T]here is no waiver of a landlord’s
sublease prohibition unless the landlord received ‘written notice
from the tenant that is party to the agreement and thereafter
accepted rent.’” (Mosser Companies v. San Francisco Rent
Stabilization & Arbitration Bd. (2015) 233 Cal.App.4th 505, 513,
quoting Civ. Code, § 1954.53, subd. (d)(4).)
Appellants argue that “[a]s legal occupants, [they] are
entitled to the just cause eviction protections of the Rent
Ordinance.” But even if appellants were lawful occupants of the
house, no authority cited by them supports their contention that
a lawful occupant is a “tenant” within the meaning of the San
Francisco Rental Ordinance, such that the landlord was required
to accept rent from them. (See S.F. Admin. Code, § 37.2(t)
[defining tenant as “[a] person entitled by written or oral
agreement, sub-tenancy approved by the landlord, or by
sufferance, to occupy a residential dwelling unit to the exclusion
of others.”].) We are not aware of any such authority. (See
Danger Panda LLC v. Launiu (2017) 10 Cal.App.5th 502, 520 &
fn. 13 [rejecting similar argument].)

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 When Menchini failed to pay the rent for February and
March 2019 before the three-day notice to pay rent or quit
expired, he forfeited the lease, and “ ‘the landlord was entitled to
possession as against the sublessee.’ ” (Syufy Enterprises v. City
of Oakland, supra, 104 Cal.App.4th at p. 883, quoting Herman v.
Campbell, supra, 86 Cal.App.2d at p. 766.) Lara was not
required to accept rent from Menchini’s subtenants. (See Civ.
Code, § 1947.3, subd. (a)(3)(A) [“A landlord . . . is not required to
accept the rent payment tendered by a third party unless the
third party has provided to the landlord . . . a signed
acknowledgment stating that they are not currently a tenant of
the premises for which the rent payment is being made and that
acceptance of the rent payment does not create a new tenancy
with the third party.”]. Had Lara accepted rent directly from the
subtenants without such a signed acknowledgment from them,
she may have inadvertently created a new tenant-landlord
relationship with them. (Cobb v. San Francisco Residential Rent
Stabilization & Arbitration Bd., supra, 98 Cal.App.4th at p. 352.)
“A rent-controlled apartment cannot . . . be passed on freely
‘from friend to friend or generation to generation.’ Only those
occupants who reside in the apartment at the start of the tenancy
and do so with the landlord’s express or implicit consent are
protected from unregulated rent increases. [Those] who
subsequently move into the apartment are not protected unless
the landlord consents to the occupancy and accepts rent from the
new occupant, thus creating a new tenancy. [Citation.]” (Mosser
Companies v. San Francisco Rent Stabilization & Arbitration
Bd., supra, 233 Cal.App.4th at p. 516.) Just as Lara was entitled
to ask the subtenants to pay $7,200 to continue in possession
after Menchini vacated, so too was she entitled to initiate

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unlawful detainer proceedings when they continued in possession
after Menchini forfeited his lease.

III. DISPOSITION
The judgment is affirmed.

DATE: September 3, 2021

FLEMING, J.

We concur:

CAFFESE, P.J.

WOODS, J.

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