Judge: Anne Richardson, Case: 23STCV26347, Date: 2024-03-15 Tentative Ruling

Case Number: 23STCV26347    Hearing Date: March 15, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

On October 27, 2023, Plaintiff NS Executives, Inc. (NS Executives) sued Defendants Non-Stop Enterprise, Inc. (Non-Stop) and Does 1 through 10 pursuant to an unlawful detainer (UD) Complaint. The UD claim arises from Non-Stop’s tenancy of premises from NS Executives pursuant to a commercial lease agreement and Non-Stop’s breach of that agreement through nonpayment of rent. NS Executives pray for possession of the premises, costs, past-due rent of $100,000, and reasonable attorney fees.

On November 9, 2023, the Complaint, summons, and other documents were served on Non-Stop by personal service on Junehee Lee, Non-Stop’s agent for service of process.

On November 15, 2023, NS Executives filed a proof of service for Non-Stop.

B. Motion Before the Court

On November 17, 2023—eight days after service—Defendant Non-Stop filed a demurrer to the Complaint.

On February 4, 2024, Plaintiff NS Executives filed an opposition.

On March 7, 2024, Non-Stop filed a reply.

Non-Stop’s demurrer is now before the Court.

C. Subsequent Filings

On March 8, 2024, Plaintiff NS Executives filed a First Amended Complaint.

II. Sua Sponte Motion to Strike

A. Legal Standard

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

B. First Amended Complaint: STRICKEN.

Here, the Court STRIKES the First Amended Complaint filed by NS Executives on March 8, 2024.

That pleading was filed without leave of court and was not filed in response to Defendant Non-Stop’s demurrer to Plaintiff’s initial Complaint. NS Executives instead filed an opposition to the demurrer on March 4, 2024. (Code Civ. Proc., §§ 472, subd. (a), 1005, subd. (b).)

The court will thus continue its analysis as to the original Complaint.

III. Demurrer

A. 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 sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) Thus, “[t]o 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.)

B. Demurrer, Entire Complaint, Noncompliance with Code Civ. Proc., §§ 1161, subd. (2), 1161.1, subd. (a): OVERRULED.

1. Relevant Law

a. Code Civ. Proc., § 1161, subd. (2)

A tenant is guilty of unlawful detainer “[w]hen the tenant continues in possession, in person or by subtenant, without the permission of the landlord, or the successor in estate of the landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days’ notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring its payment, stating the amount that is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure, or possession of the property, shall have been 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).)

Consequently, the basic elements of unlawful detainer for nonpayment of rent contained in section 1161 (2) are “(1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed.”  (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16.)   

b. Code Civ. Proc., § 1161.1, subd. (a)

“With respect to application of Section 1161 in cases of possession of commercial real property after default in the payment of rent:

(a) If the amount stated in the notice provided to the tenant pursuant to subdivision (2) of Section 1161 is clearly identified by the notice as an estimate and the amount claimed is not in fact correct, but it is determined upon the trial or other judicial determination that rent was owing, and the amount claimed in the notice was reasonably estimated, the tenant shall be subject to judgment for possession and the actual amount of rent and other sums found to be due. However, if (1) upon receipt of such a notice claiming an amount identified by the notice as an estimate, the tenant tenders to the landlord within the time for payment required by the notice, the amount which the tenant has reasonably estimated to be due and (2) if at trial it is determined that the amount of rent then due was the amount tendered by the tenant or a lesser amount, the tenant shall be deemed the prevailing party for all purposes. If the court determines that the amount so tendered by the tenant was less than the amount due, but was reasonably estimated, the tenant shall retain the right to possession if the tenant pays to the landlord within five days of the effective date of the judgment (1) the amount previously tendered if it had not been previously accepted, (2) the difference between the amount tendered and the amount determined by the court to be due, and (3) any other sums as ordered by the court.”

(Code Civ. Proc., § 1161.1, subd. (a).)

Section 1161.1 offers an alternative to commercial property landlords and does not supersede section 1161, subdivision (2).

2. Parties’ Arguments

In its demurrer, Defendant Non-Stop argues that the three-day notice to quit served on Defendant Non-Stop Enterprise is defective because it does not contain the language “excluding Saturdays and Sundays and other judicial holidays” from Code of Civil Procedure section 1161, subdivision (2), which Non-Stop argues must be contained in a three-day notice to pay or quit. (Demurrer, pp. 5-6.)

The opposition and reply dispute the merits of this position. (Opp’n, pp. 1-3; Reply, pp. 1-3.)

3. Determination on Demurrer

The Court finds in favor of Plaintiff NS Executives.

a. Timeliness of Demurrer

A demurrer in an UC proceeding should be filed within five days of service. (Code Civ. Proc., §§ 1167.3, 1170.) The Court can extend that timeframe by ten days for good cause. (Code Civ. Proc., § 1167.5.)

Here, service of the summons and Complaint on Non-Stop took place on November 9, 2023, eight days prior to Non-Stop filing its demurrer. The demurrer is thus untimely.

However, the Court determines that there is good cause to permit a ruling on the merits of the demurrer because NS Executives did not raise the timeliness issue and Non-Stop served and filed its demurrer only three days late.

b. Merits of Demurrer

The Court finds in favor of Plaintiff NS Executives.

A wholly defective notice renders the complaint fatally defective. (Baugh v. Consumers Associates, Ltd. (1966) 241 Cal.App.2d 673, 675 [“We conclude, therefore, that because of the insufficiency of the notice served upon appellant the complaint failed to state a cause of action and that the judgment entered upon the complaint may not be sustained”], superseded by statute on other grounds as noted in WDT–Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.)

A review of section 1161, subdivision (2)—the statutory section at issue in the demurrer’s points and authorities—shows that the contents that must appear on a three-day notice to pay rent or quit are those summarized in the opposition at pages 2 to 3. The statutory section’s mention of weekends and holidays in relation to the three days’ notice does not involve language that must be stated in a three day notice to pay rent or quit. Rather, this statutory section provides that: (1) unlawful detainer occurs when a tenant has defaulted on payments pursuant to a lease or agreement relating to the property and three days’ notice of that default has elapsed, not counting weekends and holidays; and (2) the notice itself must contain certain information, which is comprised of the information listed in section 1161, subdivision (2) after the words “… in writing …,” words in parentheses excluded. (See Code Civ. Proc., § 1161, subd. (2).)

Defendant Non-Stop’s demurrer is thus OVERRULED. 

IV. Conclusion

Defendant Non-Stop Enterprise, Inc.’s Demurrer to Complaint is OVERRULED.