Judge Christian R. Gullon, Case Number: 23PSCV01906, Date: 2023-10-17 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV01906, Date: 2023-10-17 Tentative Ruling

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Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

Demurrer to Complaint is OVERRULED. Defendant, Dalia Martinez is to file an answer within 5 days of this order.

On June 20, 2023, Plaintiff Covina College Street, LLC filed suit against Defendants Dalia Martinez, David Felipe Martinez, Felipe Jesus Martinez, and Mariana Martinez for past-due rent in the amount of $27,300.00.

Defendants bring forth “[t]his demurrer [] pursuant to Code of Civil Procedure §1170 on the grounds that the three-day notice served on Defendant is defective as it does not contain the information required by Code of Civil Procedure §1161(2), and further that the three-day notice overstates the amount due, thus it is fatally defective and will not support an unlawful detainer action.” (Demurrer p. 1: 21-25.)

Here, the demurrer fails because purported improper service (the main grounds for the demurrer) is not a reason assessed by demurrers. Rather, a demurrer tests the legal sufficiency of the pleadings (i.e., it raises issues of law, not fact).[1] (See generally Rutter Group, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A.) Lack of personal jurisdiction over defendant is not ground for demurrer. (Ibid.) Instead, “an unlawful detainer defendant may properly file a motion to quash to contest a summons.” (Stancil v. Superior court (2021) 11 Cal.5th 381, 400-401.) However, since defendant instead of filing a motion to quash filed a demurrer, it constitutes a general appearance, thus waiving any defect in personal jurisdiction.

To the extent that Defendants demur on the grounds that the three-day notice was served but is otherwise defective as it “does not contain the information required by Code of Civil Procedure §1161(2),” there is no explanation of facts or information is otherwise missing. (Demurrer p. 3: 16-18 [“(e) The pleading does not state facts sufficient to constitute a cause of action. Here, Plaintiff’s Complaint fails to state facts sufficient to constitute a cause of action. As such, demurrer is proper.”].) Therefore, this argument is deemed waived and will not be considered. (See also Opp. p. 3: 4-6 [“Because Defendants failed to provide any arguments in support of this ground, the Court should deny Defendants’ demurrer on this ground.”].)

Based on the foregoing—as Defendants have not explained how the complaint and/or three-day notice fails to plead sufficient facts to support a UD action—the demurrer is OVERRULED. Defendants are to file their answer within 5 days of this order.

[1] For this reason—that a demurrer does not assess veracity of the allegations—Defendants’ use of a demurrer to challenge the correct amount due on the three-day notice is improper. (See Demurrer p. 4.) To this point, Defendants’ citations are inapposite because the cases address whether CCP section 1162 service of termination of tenancy requirement(s) were met based upon evidence. (See e.g., Kwok v. Bergren (1982) 130 Cal.App.3d 596 [Issue before the court was “whether there was evidence before the trial court to support its finding that appellants were properly served with the three-day notice to pay rent or quit.”], emphasis added); see also Demurrer p. 4, citing to Briggs v. Electronic Memories & Magnetic (1975) 53 Cal. App.3d 900, 904 [Examined the evidence presented during a trial].)