Judge: Deirdre Hill, Case: 20TRCV00081, Date: 2022-10-18 Tentative Ruling

Case Number: 20TRCV00081    Hearing Date: October 18, 2022    Dept: M

Hearing Date:                          October 18, 2022

Moving Parties:                      Defendants Douglas L. De Coster and Elsa D. De Coster

Responding Party:                  Plaintiff Jingqui He

Demurrer to FAC and Motion to Strike

            The court considered the moving and opposition papers.

RULING

            The demurrer is OVERRULED as to the Fourth Amended Complaint.  The motion to strike is DENIED.  Defendants are ordered to pay additional filing fee for the motion to strike forthwith.  Defendants are ordered to file an answer within ten days.

BACKGROUND

            On January 23, 2020, plaintiff Jingqui He, trustee of the He Trust, filed an unlawful detainer action against Douglas L. De Coster and Elsa De. De Coster as to property at 6532 Via Siena, Rancho Palos Verdes.  Plaintiff alleges that on September 26, 2019, defendants agreed to rent the property for $5,600 per month pursuant to a written contract.  Plaintiff served a three-day notice to pay rent or quit and a three-day notice to perform covenants or quit, which expired on January 22, 2020.

            On February 19, 2020, plaintiff filed a FAC.

            On July 1, 2020, the court overruled defendants’ demurrer and granted the motion to strike with leave to amend to file a corrected verification.

            On July 7, 2020, plaintiff filed a SAC.

            On July 22, 2020, a default was entered as against each defendant.

            On July 31, 2020, the court vacated the defaults pursuant to Judicial Council Emergency Rule 1(c).

            On October 15, 2021, at the FSC and trial, the parties stipulated that defendants would vacate the premises that day and that keys would be returned to plaintiff’s counsel on/by Monday.

            On March 1, 2022, plaintiff filed a Third Amended Complaint for unlawful detainer.

            On March 7, 2022, at the CMC, the court noted that plaintiff’s counsel had previously represented that possession was no longer at issue but that the TAC and the associated summons were for UD seeking possession.  On the stipulation of the parties, the court granted leave for plaintiff to file a Fourth Amended Complaint.

            On March 31, 2022, plaintiff filed a Fourth Amended Complaint.

LEGAL AUTHORITY

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.  “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.”  SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.  “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  CCP § 436(a).  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  CCP § 436(b).  The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws.  CCP § 436.  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP § 437.

DISCUSSION

Demurrer

Defendants contend that the allegations in the Fourth Amended Complaint are insufficient to constitute a cause of action and the Fourth Amended Complaint is vague and ambiguous.

            Defendants argue that in the form complaint, paragraph 7.a.is marked stating that the property “is not subject to the Tenant Protection Act of 2019 (Civil Code §1946.2),” but that paragraph 8.a. is marked stating that “[t]he tenancy was terminated for at-fault just cause (Civil Code §1946.2(b)(1)).” 

            In opposition, plaintiff contends correctly that this is a general civil case based on defendants’ failure to pay past owed rents.  Plaintiff argues that he has pled the allegations to support a breach of lease.  As to the marked boxes, plaintiff argues that they do not render the complaint so uncertain that defendants cannot reasonably respond.

The court finds that the allegations are sufficient to state a claim for breach of lease.  As to the marked boxes at 7.a. and 8.a., the court notes that the form complaint states to complete paragraph 8 “only if item 7b is checked.”  Paragraph 7.b. was not checked so the box marked at 8.a. is in error.  Any ambiguity, however, with respect to the Tenant Protection Act can be resolved through discovery.  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 616.  Moreover, “[a] special demurrer should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.”  Gressley v. Williams (1961) 193 Cal. App. 2d 636, 643.

            The demurrer is thus OVERRULED.

Motion to strike

Defendants assert that the complaint seeks damages not permitted in an unlawful detainer:  defendants’ damage to the premises, which exceeds $2,192.05.

The court notes that defendants improperly combined the motion to strike with the demurrer.  The motion does not comply with Cal. Rules of Court, Rule 3.1112 (“General format”).  Further, the notice of motion to strike is not in compliance with Cal. Rules of Court, Rule 3.1322(a) (contents of notice).  Also, defendants did not pay a filing fee.

In any event, the action was converted to a civil action as possession is no longer at issue.

The motion to strike is DENIED.  Defendants are ordered to pay an additional filing fee.

            Plaintiff is ordered to give notice of the ruling.