Judge: Curtis A. Kin, Case: 22STCV33493, Date: 2022-12-20 Tentative Ruling

Case Number: 22STCV33493    Hearing Date: December 20, 2022    Dept: 72

DEMURRER

Date:             12/20/22 (9:30 AM)               

Case:            MMP South Park Owner, LLC v. Louis Angel (22STCV33493)

TENTAIVE RULING:

Defendant Louis Angel’s Demurrer to Complaint is OVERRULED.

As a preliminary matter, defendant Louis Angel did not file any declaration indicating an attempt to meet and confer with plaintiff MMP South Park Owner, LLC before filing the demurrer, as required by CCP § 430.41(a)(3). Even though defendant is self-represented, “mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–85.)  Defendant is admonished to comply with the meet and confer requirements of the Code of Civil Procedure. Notwithstanding this admonition, “A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (CCP § 430.41(a)(4).)

As another preliminary matter, plaintiff did not file a proof of service indicating that defendant was served with a copy of the opposition to the demurrer. Nevertheless, because the demurrer can be overruled based on the demurrer alone, the Court rules on the merits of the motion, without consideration of plaintiff’s opposition.

Defendant Louis Angel demurs to the Complaint for Unlawful Detainer on the following grounds: (1) the three-day notice to pay rent or quit did not contain the information required under CCP § 1161(2), (2) the three-day notice alleged in the Complaint overstates the amount of rent due, and (3) the three-day notice alleged in the Complaint was served before the amount stated therein became due.

With respect to the first ground, CCP § 1161(2) requires the three-day notice to pay rent to state the requirement to pay rent; the amount of rent due; the name, telephone number, and address of the person to whom the outstanding rent shall be paid; the days and hours when payment can be received personally; and that the tenant can pay using the electronic funds transfer procedure previously established when such procedure has been established.

The three-day notice attached to the Complaint complies with CCP § 1161(2). The notice states that defendant is required to pay $30,554.19 within three days after service of the notice, or the next business day. The notice also states that payment shall be paid in person to Kelli Bradwell or any available personnel at 717 W Olympic Blvd, Los Angeles, CA 90015-1497. The notice provides Bradwell’s telephone number, (213) 624-8439. The notice states that defendant can deliver payment any day of the week from 9:00 a.m. to 6:00 p.m. The notice also provides that defendant can pay using the electronic funds transfer procedure previously established.

With respect to the second and third grounds, whether the three-day notice overstates the delinquent amount of rent and whether the notice was served before the amount stated therein became due are questions of fact to be resolved on summary judgment or trial. “[A] demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.”  (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.)

The Court concludes by noting that the caption states, “Notice of Submission Without Appearance.” Because defendant filed a demurrer, defendant has appeared in the action. (CCP § 1014 [“A defendant appears in an action when the defendant…demurs….”].)

The demurrer is OVERRULED.  Five (5) days to answer.