Case Number: 23STCV07122    Hearing Date: May 8, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Sung Park brings this unlawful detainer action against Defendants In Suk Seo and Chun Hee Lee pursuant to a March 20, 2023 Complaint requesting possession of the premises located at 102 South Manhattan Place, Apt. 306, Los Angeles, CA 90005 (Subject Property), costs of the proceeding, $31,200 in past-due rent, reasonable attorney’s fees, damages of $ 86.67 per day starting March 30, 2023, and statutory damages of up to $600.

On April 4, 2023, Plaintiff Park effected service of summons and complaint on Defendant Seo by personal service.

On April 6, 2023, Plaintiff Park effected service of summons and complaint on Defendant Lee by personal service.

On April 13, 2023, Plaintiff Park requested, and the Clerk granted entry of default against Defendant Seo.

On April 14, 2023, Defendants Seo and Lee—appearing in pro per—filed a demurrer to the UD Complaint on the ground that the statutory three-day notice to pay or quit required in an unlawful detainer action was not properly served on Seo and Lee in conformity with the requirements of Code of Civil Procedure section 1162.

On April 28, 2023, Plaintiff Park opposed the demurrer generally and otherwise objected to Defendant Seo making the demurrer because default was entered against Seo on April 13, 2023.

No reply has been filed by Defendants Seo and Lee responding to the April 28th opposition by Plaintiff Park.

The demurrer is now before the Court.

Demurrer as to Defendant Seo: NULL.

Legal Standard

“[T]he filing of the demurrer and the motion to strike out after [a] default ha[s] been entered” “c[an] have no legal effect,” and the receipt of any such pleading by the clerk is irrelevant because the clerk cannot “suspend the ministerial duty” “to receive and file these pleadings” even when such pleadings “have no legal effect.” (Christerson v. French (1919) 180 Cal. 523, 525.) Accordingly, a party against whom a default has been entered has no standing to file any responsive pleading without first obtaining relief from the default. (Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal.App.3d 257, 262 [Finding that a demurrer filed after an entry of default was a “legal nullity”]; Todd v. Everett (1966) 247 Cal.App.2d 209, 212 [The only action that the defendant can take after default has been entered is to attack the entry of default].)

Analysis

When a summons and complaint are served in an unlawful detainer action, the defendant must respond thereto within five days, unless service was made by mail or through the Secretary of State’s address confidential program, in which case an additional five court days to file a response are added. (Code Civ. Proc., 1167, subd. (a).)

In the opposition, Plaintiff Park argues that the demurrer filed by Defendants Seo and Lee is a nullity as filed by Defendant Seo because default had been entered against Seo prior to the filing of the demurrer. (Opp’n pp. 5-6.)

No reply was filed by Defendants Seo and Lee to rebut this argument. (See docket generally.)

Here, the summons and complaint were served on Defendant Seo on April 4, 2023 by personal delivery. (See 4/10/23 Proof of Service.)

Response thereto was due five business days later, on April 11, 2023. (See Code Civ. Proc., § 1167, subd. (a).)

No answer or demurrer was filed by Defendant Seo as of that date.

Instead, on April 13, 2023, Plaintiff Park secured an entry of default against Defendant Seo.

Not until April 14, 2023 did Defendant Seo respond by filing a demurrer to the UD Complaint alongside Defendant Lee.

Because entry of default against Defendant Seo preceded Seo and Lee’s filing of the demurrer, the demurrer HAS NO LEGAL EFFECT and is NULL as to Defendant Seo. (Forbes v. Cameron Petroleums, Inc., supra, 83 Cal.App.3d at p. 262)

Demurrer as to Defendant Lee: OVERRULED.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

Analysis

Defendants Lee—appearing in pro per—has filed a demurrer against the UD Complaint on the ground that the statutory three-day notice required in an unlawful detainer action was not properly served on Lee pursuant to Code of Civil Procedure section 1162. (Demurrer, pp. 3-5; see Demurrer, p. 3 [“Defendant never received this notice prior to its appearance in the unlawful detainer complaint”].) The Court notes, however, that the notice accompanying the demurrer instead grounds its challenge to the UD Complaint on Code of Civil Procedure section 1161, subdivision (2), specifying the requirements that must be met to serve a three-day notice to pay or quit on a tenant holding over on the property. (Demurrer, p. 3.)

The Court reads the demurrer as being premised on section 1162 rather than section 1161, subdivision (2), because the demurrer’s points and authorities elaborate on the former argument and do not address the latter. (See Demurrer, pp. 3-5.)

In opposition, Plaintiff Park takes the position that the three-day notice to pay rent or quit—attached as Exhibit 2 to the UD Complaint—satisfies all requirements in Code of Civil Procedure section 1161, subdivision (2) but does not address whether service thereof was properly effectuated on Defendants Seo and Lee. (Opp’n, pp. 3-5.)

A review of Exhibit 3 attached to the UD Complaint shows that service of the three-day notice to pay or quit was effected on Defendant Lee at the Subject Property by substituted service on a Jane Doe, a co-occupant at the Subject Property. (UD Complaint, Ex. 3.) The Court finds that such proof of service sufficiently satisfies Code of Civil Procedure section 1162, subdivision (a)(2). As a result, the Court finds that the proof of service attached to the UD Complaint relating to the three-day notice to pay or quit does not contradict the pleadings in the UD Complaint as to take precedence thereover or show that the three-day notice to pay or quit was not properly served on Defendant Lee—per the attachment to the UD Complaint, it was. (Holland v. Morse Diesel Intern., Inc., supra, 86 Cal.App.4th at p. 1447.)

Conclusion

Defendants In Suk Seo and Chun Hee Lee’s Demurrer to [Unlawful Detainer] Complaint HAS NO LEGAL EFFECT and IS NULL as to Defendant Seo because default was entered against Seo on April 13, 2023, one day prior to Defendants Seo and Lee filing their demurrer.

Defendants In Suk Seo and Chun Hee Lee’s Demurrer to [Unlawful Detainer] Complaint, as to Defendant Lee, is OVERRULED because—as premised on arguments relating to service of a three-day notice to pay or quit pursuant to Code of Civil Procedure section 1162—the UD Complaint is sufficiently stated as to service on Defendant Lee, a conclusion supported and not contradicted by Exhibit 3 attached to the UD Complaint.