Judge: David A. Rosen, Case: 23GDCV00376, Date: 2023-05-05 Tentative Ruling
Case Number: 23GDCV00376 Hearing Date: May 5, 2023 Dept: E
Case No: 23GDCV00376
Hearing Date: 05/05/2023 – 10:00am
Trial Date: Unset
Case Name: SHIN HO KIM and GENA SOON YOON v.
ROBERT YEPREMIAN; DOES 1-10
TENTATIVE RULING ON
DEMURRER
Moving Party: Defendant, Robert Repremian
Responding Party: Plaintiffs,
Shin Ho Kim and Gena Soon Yoon
(Oppo and Reply
Submitted)
Proof of Service
Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok
Moving Papers: Demurrer/Motion;
Request for Judicial Notice
Opposition Papers: Opposition;
Request for Judicial Notice
Reply Papers: Reply
RELIEF REQUESTED
Defendant, Robert Yepremian, demurs to the First Amended Complaint (FAC) on the
following grounds:
1.
The FAC fails to allege facts sufficient to state a cause of
action;
2.
To the extent the FAC contains a cause of action predicated on
service of a notice to pay rent or quit, the FAC fails to allege facts
sufficient to state a cause of action;
3.
To the extent the FAC contains a cause of action predicated on
expiration of a fixed term lease, the FAC fails to allege facts sufficient to
state a cause of action.
BACKGROUND
The instant action is an
unlawful detainer action. The original Complaint was filed on 02/17/2023. The
FAC was filed on 03/03/2023.
The
FAC used form complaint UD-100. Plaintiffs allege that on or about July 17, 2017,
Defendant agreed to rent the premises as a term lease. Plaintiffs attached
Exhibit 1 which is the lease agreement and the assignment and assumption of the
lease agreement. Plaintiffs allege the tenancy is not subject tot the Tenant
Protection Act of 2019 and is exempt because the this is a commercial tenancy
consisting of a single story building, and not a residential building.
Plaintiffs
also allege that Defendant was served a 3-day notice to pay rent or quit.
Plaintiffs further alleged that on February 7, 2023, the 3-day notice to pay
rent or quit expired at the end of the day. The 3-day notice was attached to
the FAC as Exhibit 2. The 3-day notice was served by substituted service on February
2, 2023.
Plaintiffs’
FAC demands possession from Defendant for expiration of a fixed term lease in
Paragraph 11 of the FAC. Further, ¶12 of the FAC alleges that at the time the
3-day notice to pay rent or quit was served, the amount of rent due was
$41,862.00.
In
Exhibit 2, the 3-day notice to pay rent stated in relevant part:
PLEASE TAKE NOTICE that in accordance with the agreement under
which you held possession of the premises located at 3620 Foothill Blvd., La
Crescenta, California, 91214, there is now due unpaid rent in the following
amounts for the following specified periods: $2,025 for June 15, 2020; $2,289
for July 15, 2020; $2335 per month from August 15, 2020 to July 15, 2021 for a
total of $28,020; and $2,382 per month from August 15, 2021 to November 15,
2021, for a total of $9,528. The total rent demand for the aforesaid periods
is $41,862. The above amount of rent has been estimated pursuant to code of
Civil Procedure section 1161.1 by the undersigned.
(FAC, Ex. 2.)
PROCEDURAL
Meet
and Confer
A party filing a
demurrer “shall meet and confer in person or by telephone with the party who
filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (Code Civ.
Proc., §430.41, subd. (a).) “The parties
shall meet and confer at least five days before the date the responsive
pleading is due. If the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the demurring party
shall be granted an automatic 30-day extension of time within which to file a
responsive pleading, by filing and serving, on or before the date on which a
demurrer would be due, a declaration stating under penalty of perjury that a
good faith attempt to meet and confer was made and explaining the reasons why
the parties could not meet and confer.”
(Code Civ. Proc., §430.41, subd. (a)(2).) Failure to sufficiently meet
and confer is not grounds to overrule or sustain a demurrer. (Id., §430.41(a)(4).)
Here,
moving party’s attorney notes how he did not meet and confer prior to filing
the demurrer because the action is an unlawful detainer action which is exempt
from the meet and confer requirement. (Hovsepian Decl. ¶3.) “This section does
not apply to the following civil actions:(2) A proceeding in forcible
entry, forcible detainer, or unlawful detainer.” (CCP §430.41(d)(2).)
LEGAL STANDARDS FOR DEMURRERS
Demurrer
– Sufficiency
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th
740, 747.) 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.) The court “treat[s] the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or conclusions
of fact or law ….” (Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 525.) In a
demurrer proceeding, the defects must be apparent on the face of the pleading
or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters; therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn, supra, 147 Cal.App.4th at
747.)
The
general rule is that the plaintiff need only allege ultimate facts, not
evidentiary facts. (Doe v. City of
Los Angeles (2007) 42 Cal.4th 531, 550.)
“All that is required of a plaintiff, as a matter of pleading … is that
his complaint set forth the essential facts of the case with reasonable
precision and with sufficient particularity to acquaint the defendant with the
nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
On
demurrer, a trial court has an independent duty to “determine whether or not
the … complaint alleges facts sufficient to state a cause of action under any
legal theory.” (Das v. Bank of
America, N.A. (2010) 186 Cal.App.4th 727, 734.) “A demurrer does not lie to a portion of a
cause of action.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th
1680, 1682.) “Generally
it is an abuse of discretion to sustain a demurrer without leave to amend if
there is any reasonable possibility that the defect can be cured by
amendment.” (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349.)
Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored
and will only be sustained where the pleading is so bad that defendant cannot
reasonably respond—i.e., cannot reasonably determine what issues must be
admitted or denied, or what counts or claims are directed against
him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14
Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague,
“ambiguities can be clarified under modern discovery procedures.” (Ibid.)
ANALYSIS
CCP § 1161(2) states in pertinent part, “The
notice may be served at any time within one year after the rent becomes
due…”
“Due to the summary nature of such an action,
a three-day notice is valid only if the landlord strictly complies with the
provisions of section 1161, subdivision 2 … A notice that seeks rent in excess
of the amount due is invalid and will not support an unlawful detainer
action.” (Levitz Furniture Co. of the
Pac., Inc. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4th 1035, 1038
(“If the landlord waits over a year to sue for unpaid rent, he or she is
limited to collecting such rent in a standard breach of contract action, ‘which
results only in a money judgment without restitution of the demised
property.’”).)
Defendant argues that to the extent the FAC is
predicated on nonpayment of rent, it fails as a matter of law because none of
the rent demanded in the notice became due within one year of service of the
notice, and therefore, the notice can never be construed as constituting a
reasonable estimate of rent.
As to Defendant’s argument that 1161(2) requires that
the rent demanded in a 3-day notice to pay rent or quit became due within one
year preceding service of the notice, Defendant’s arguments are on point.
The instant notice to pay rent was served on February
2, 2023, and the demand for rent ranges from rent due from June 15, 2020 –
November 15 2021. “If a landlord proceeds by way of a three-day notice to ‘pay
or quit’ when the tenant is in default in rent payments, the landlord is
limited to recovering rent that accrued within one year of the notice.” (Hong Sang Market, Inc. v. Peng (2018)
20 Cal.App.5th 474, 491.) Accordingly, a
notice that demands rent for more than one year’s rent is defective. (Bevill v. Zoura (1994) 27 Cal.App.4th
694, 697-98.) Therefore, here, to the
extent the notice demands rent for more than one year’s rent, it is defective
under 1161(2).
However,
for nonpayment of rent cases involving commercial properties, CCP
§ 1161.1(a) states:
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…
(Emphasis
added.) A notice served under CCP §
1161.1 (as opposed to CCP § 1161(2)) is not invalidated because it includes a
demand for rent due for more than a year. (Levitz Furniture Co. of the Pac., Inc.,
86 Cal.App.4th at 1039-40 (CCP § 1161.1 notice not invalidated by fact it included
an extra month beyond one-year limit where rent demand otherwise reasonably
estimated); compare with Bevill, 27 Cal.App.4th at 697-98 (notice not
stated as § 1161.1 estimated rent demand but rather notice served under CCP §
1161(2) and demanded rent owed more than one year before service, which deprived
tenant of ‘proper opportunity to cure and prevent’ unlawful detainer action).)
Here,
the notice was also expressly based on 1161.1, and Plaintiff is a commercial
tenant. In the notice, as indicated in the background section of this tentative
ruling, Plaintiff expressly set forth the basis for the reasonable estimate of
the rent due.
Defendant’s
citations to Levitz Furniture Co. v. Wingtip Communications Inc. (2001)
86 Cal.App.4th 1035 and WDT-Winchester v. Nilsson (1994)
27 Cal.App.4th 516, 534 do not support Defendant’s argument that the notice can
never be construed as constituting a reasonable estimate of rent because none
of the rent demanded in the notice became due within one year of service of the
notice.
In
Levitz, the 1161.1 estimate was upheld. In WDT-Winchester, the
estimate was found not to be reasonable, but not because the estimate was based
on rent due more than a year before the notice. Defendant cites no law to the
effect that the reasonable estimate of overdue rent under 1161.1 must be based
on rents that were due less than a year before the notice to quit per 1161(2).
Since
this Court is overruling the demurrer on the basis that the nonpayment of rent
was properly noticed and pled, the moratorium does not come into play because,
as the demurrer acknowledges, the moratorium has been terminated with respect
to commercial nonpayment of rent cases.
TENTATIVE
RULING
Defendant’s
demurrer as to Ground 1 is overruled. Defendant’s demurrer as to Ground 2 is
overruled based on CCP 1161.1.
As
a result of the rulings on the first two Grounds, the Court does not reach a
ruling on Ground 3.
Defendant
is to efile and eserve its Answer within 10 days.