Judge Daniel M. Crowley, Case Number: 24STCV02243, Date: 2024-04-12 Tentative Ruling

5850 AVALON LLC,

vs.

PROJECT METALS, et al.

Case No.: 24STCV02243

Hearing Date: April 10, 2024

Defendants Project Metals’, Power Fasteners’, and Patrick Harrington’s demurrer to Plaintiff 5850 Avalon LLC’s complaint is sustained without leave to amend.

Defendants Project Metals (“Project”), Power Fasteners (“Power”), and Patrick Harrington (“Harrington”) (collectively, “Defendants”) demur to Plaintiff 5850 Avalon LLC’s (“Plaintiff”) complaint (“Complaint”) on the basis (1) it is not properly verified; (2) the Complaint and the contexts of Exhibit 1 are inconsistent, ambiguous, and uncertain, and therefore fails to state a cause of action in unlawful detainer; (3) the Complaint and the contexts of Exhibits 2 and 3 are inconsistent, ambiguous, and uncertain, and therefore fails to state a cause of action in unlawful detainer; and (4) the Complaint and Prayer for relief are inconsistent, ambiguous, and uncertain, and therefore fails to state a cause of action in unlawful detainer. (Notice of Demurrer, pgs. 1-2; C.C.P. §§430.10, 430.30.)

On January 29, 2024, Plaintiff filed its operative Complaint against Defendants alleging a single cause of action for unlawful detainer arising from the termination of a written commercial lease between Plaintiff and Project for real property located at 5860 Mettler Street, Los Angeles, CA 90003 (“Premises”). (See Complaint ¶¶3, 6.)

Defendants filed the instant demurrer on February 2, 2024. Plaintiff filed its opposition on March 28, 2024. As of the date of this hearing no reply has been filed.

Summary of Allegations

Plaintiff alleges Project agreed to rent the Premises on or about February 2, 2015, as a lease. (Complaint ¶6a.) Plaintiff alleges Project agreed to pay monthly rent of $7,500.00 on the first of the month. (Complaint ¶6a.) Plaintiff alleges this written agreement was made with Plaintiff’s predecessor in interest. (Complaint ¶6b.) Plaintiff alleges the defendants not named in Complaint ¶6a are others in possession. (Complaint ¶6c.) Plaintiff alleges the agreement was later changed when the lease expired, and the Defendants were on a month-to-month tenancy. (Complaint ¶6d.) Plaintiff alleges a copy of the written lease agreement is attached. (Complaint ¶6e, Exh. 1.) Plaintiff alleges the tenancy is not subject to the Tenant Protection Act of 2019. (Complaint ¶7a.)

Plaintiff alleges Defendant was served with a 30-day notice to pay rent or quit and a notice of termination of month-to-month tenancy. (Complaint ¶¶9a(2), (7).) Plaintiff alleges on December 29, 2023, the period stated in the notice checked in 9a expired at the end of the day. (Complaint ¶¶9b, 9e, Exh. 2.) Plaintiff alleges the notice was served on Project by personally handing copy to Project on November 27, 2023, and November 28, 2023, and in the manner specified in a written commercial lease between the parties. (Complaint ¶¶10a(1), (5); ¶10d, Exh. 3.)

Plaintiff alleges it demands possession from each Defendant because of expiration of a fixed-term lease. (Complaint ¶11.) Plaintiff alleges the fair rental value of the premises is $1,000.00 per day. (Complaint ¶13.) Plaintiff requests past-due rent of $30,000.00, reasonable attorney fees, and damages from December 29, 2023, at a rate of $1,000.00 per day for each day Defendants remain in possession through entry of judgment. (Complaint ¶19.)

In support of their demurrer to Plaintiff’s Complaint, Defendants argue the claim fails to allege facts sufficient to constitute a viable cause of action because the Complaint is not properly verified, and the Complaint and Exhibits 1-3 and the Prayer are inconsistent, ambiguous, and uncertain and therefore fail to state a cause of action in unlawful detainer. (Demurrer, pg. 3; C.C.P. §430.10(e).)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

Failure to State a Claim

A cause of action for unlawful detainer must allege the following elements: (1) a verified complaint; (2) facts on which the plaintiff seeks to recover; (3) description of premises with reasonable certainty; (4) amount of rent in default, if the action is based on paragraph (2) of §1161; (5) specifically the method used to serve the defendant with the notice or notices of termination; (6) in action regarding residential property, unless agreement is oral, landlord lacks possession of writing, or action is based solely on C.C.P. §1161(2), attachments including copies of (a) notices of termination served on the defendant, (b) any written lease or rental agreement regarding the premises, including any addenda or attachments to the lease. (C.C.P. §1166.)

Plaintiff’s Complaint is compliance with §1161(a)(1) because C.C.P. §446(a) provides, in part, “[e]very pleading shall be subscribed by the party or his or her attorney. When a corporation is a party, the verification may be made by any officer thereof.” (C.C.P. §446(a), emphasis added.)

Here, Plaintiff’s managing member, Hesham Sitita (“Sitita”), verified Plaintiff’s complaint. (Verification.) Sitita’s verification states that it is executed on January 22, 2024. However, on the signature line bearing Sitita’s signature, the is the additional handwritten date of January 23, 2024. The Complaint itself is dated January 24, 2024. Defendants do not cite case law to support their argument that Plaintiff’s counsel must sign the Complaint prior to Plaintiff’s verification, and the two verification dates on Sitita’s verification are not in conflict, as the later date is taken to be the actual date of verification.

Defendants’ argument that the Complaint and Exhibit 1 are inconsistent is unavailing. The allegations in the Complaint that the “lease expired and defendants were on a month-to-month tenancy” (Complaint ¶6d) and “Plaintiff demands possession from each defendant because of expiration of a fixed-term lease” (Complaint ¶11) are not inconsistent with Exhibit 1, which states the lease terminated on February 1, 2019 (Complaint ¶6e, Exh. 1 at pg. 1, §2A), or the addendum which provides that the lease shall include an option to extend the term of the lease for an additional two (2) year period, commencing on February 1, 2017, and terminating on February 1, 2019 (Complaint ¶6e, Exh. 1 at pg. 8, ¶1). That the Complaint alleges “the lease expired and defendants were on a month-to-month tenancy” is not inconsistent with the allegation that the fixed-term lease expired, as such a pleading allows for the inference that Defendants were holdover tenants in a month-to-month lease agreement. Further, ¶11 of the Complaint does not allow for an alternative pleading to the allegation, “Plaintiff demands possession from each defendant because of expiration of a fixed-term lease.” (Complaint ¶11.)

However, Defendants’ argument that the Complaint and Exhibits 2 and 3 are inconsistent is well taken. The Proofs of Service, Exhibit 3, state the Notices of Termination of Month-to-Month Tenancy were served on November 18, 2023, and November 19, 2023, which are inconsistent with the dates of the Notices, served on November 27, 2023, and November 28, 2023, respectively. (Complaint ¶9e, Exh. 2; ¶10a(1), ¶10d, Exh. 3.) Additionally, ¶9a states that a “30-day notice to quit” and also a “notice of termination of month-to-month tenancy” were served. However, there is only one notice attached to the complaint, the “Notice of Termination of Month-to-Month Tenancy.” (Complaint ¶¶9a, 9e.)

“The established rule is that, where the right to a forfeiture is created by contract or by law, ‘it has always been considered that it was necessary to restrain it to the most technical limits of the terms and conditions upon which the right is to be exercised.’” (Downing v. Cutting Packing Co. (1920) 183 Cal. 91, 95.) Put differently, unlawful detainer statutes are strictly construed, and “every intendment and presumption is against the person seeking to enforce the forfeiture.” (Horton-Howard v. Payton (1919) 44 Cal.App. 108, 112.) “Because of the summary nature of an unlawful detainer action, a notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements.” (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697 [internal citations omitted].) Valid notice is a prerequisite to an unlawful detainer action. (See Kwok v. Bergren (1982) 130 Cal.App.3d 596, 599-600 [citing Lawrence Barker, Inc. v. Briggs (1952) 39 Cal.2d 654, 661].). Here, Plaintiff’s failure to attach correct proofs of service and the notices are not in strict compliance with the statutorily mandated notice requirements. Therefore, this Court must grant Defendants’ demurrer without leave to amend.

Finally, Defendants’ argument that the Notice of Termination of Month-to-Month Tenancy, Exhibit 2, fails to demand any rent, and is only for possession of the premises is unavailing. A Complaint for unlawful detainer for nonpayment of rent fails to state a cause of action if the underlying three-day notice contains no statement of the amount of rent due. (Baugh v. Consumers Associates, Ltd. (1966) 241 Cal.App.2d 672, 674, superseded by statute on other grounds as stated in WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526, emphasis added.) Here, there is no three-day notice, but rather a thirty-day notice; therefore, the thirty-day notice was not required by statute to state the amount of rent due.