Judge Douglas W. Stern, Case Number: 22STCV19217, Date: 2023-10-12 Tentative Ruling

Judge: Douglas W. Stern, Case: 22STCV19217, Date: 2023-10-12 Tentative Ruling

Case Number: 22STCV19217 Hearing Date: October 12, 2023 Dept: 68

DAY O GRAPHICS, INC.’S DEMURRER

BACKGROUND: This is a commercial unlawful detainer case.

MOVING PARTY argues: Plaintiff, identified as “Peter Simpson,” has not requested a substitution of the party plaintiff. Also, paragraph 40 of the First Amended Complaint does not identify demurring Defendant as being served with the three-day notice to quit. Plaintiff also does not allege that Day-O-Graphics was mailed a copy of the three-day notice to quit. There are no allegations showing the requisite due diligence to allow the service of the three-day notice to quit. There is no information in the proof of service about prior attempts to serve Defendants. Further, Plaintiff has not alleged sufficient facts to satisfy the requirements for the “posting and mailing” method of serving the three-day notice to quit. Also, the complaint states that Defendants served Belle Art Custom Framing, but that is a fictitious business name. Complaint fails to allege the date the alleged subletting occurred, the name of the person or entity to whom a portion of the subject properly was sublet, the specific portion of the subject property that were sublet, and the specific language in the lease agreement that purportedly makes it illegal to sublet a portion of the subject property. It cannot be ascertained from the Complaint or the three-day notice to quit which fire sprinklers Defendants failed to maintain, in what manner Defendants failed to maintain fire sprinklers in the subject property, what language in the lease agreement made it Defendants’ responsibility to maintain the fire sprinklers in the subject property, in what manner failing to maintain the fire sprinklers is a “nuisance” sanctioning the use of Code of Civil Procedure, §1161(4), and what notice, if any, Plaintiff provided to Defendants prior to the purported service of the three-day notice to quit that informed Defendants that Plaintiff deemed Defendants to have not maintained the fire sprinklers in the subject property. Plaintiff has failed to allege the nature of the insurance Defendants purportedly failed to maintain, the date said insurance lapsed or Defendants failed to renew said insurance, and what knowledge or information Plaintiff has to support the statement in the three-day notice to quit that Defendants failed to maintain insurance required by the Lease Agreement. None of the acts or omission by Demurring Defendant, constitute a nuisance that would support implementation of Code of Civil Procedure, §1161(4) and allow termination of the lease agreement.

RESPONDING PARTY argues: Plaintiff is unaware of, and Defendant does not offer, any precedent suggesting that a party may not amend its Complaint to correct the name or capacity of the plaintiff as a matter of course under section 472. In addition the service alleged complied with the lease agreement and with the law. The notice was properly served on Day-O Graphics, Inc. Further, the First Amended Complaint sufficiently alleges unauthorized sublease and breaches based on nuisance.

IN REPLY, MOVING PARTY argues: None.

LEGAL STANDARD: A demurrer tests the sufficiency of a complaint by raising questions of law. (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 20.) The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Flynn v. Higham (1983) 149 Cal.App.3d 677, 679.) Where written documents are the foundation of an action and are attached to the complaint and incorporated therein by reference, they become a part of the complaint and may be considered on demurrer. (Byrne v. Harvey (1962) 211 Cal.App.2d 92, 103; see also Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1626–1627.) A demurrer must be sustained where the facts alleged do not entitle the plaintiffs to relief under any possible legal theory. (See Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.) Where there is no possibility amendment would cure the complaint's defects, it is appropriate to sustain the demurrer without leave to amend. (Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118–119.)

MEET AND CONFER: The meet-and-confer requirements in Code Civil Procedure, section 430.41, that must be met before the filing of a demurrer are not applicable to unlawful detainer actions. (Code Civ. Pro., §430.41, subd. (d)(2).)

DISCUSSION:

Preliminarily, the demurrer is untimely. A defendant has five days after service in which to respond to an unlawful detainer action. (Code Civ. Pro., §§1167, 1167.3, 1170.) Here, Plaintiff served the first amended complaint by electronic mail on August 31, 2023. Defendant demurred on September 13, 2023, which is past the five days even after adding days for service by electronic mail. (Code. Civ. Pro., § 1010.6, subd. (a)(3)(B).)

The complaint must set forth the facts which the plaintiff seeks to recover and must describe the premises with reasonable certainty. (Code Civ. Pro., §1166, subd.(a)(2), (a)(3).) It must also set forth the amount of damages claimed, and if the case is based on the tenant’s default in the payment of rent, the amount of that rent. (Code Civ. Pro., §1166(a)(4), (b).) Finally, it must state the method used to serve the defendant with the notice of termination on which the complaint is based. (Code Civ. Pro., §1166, subd. (a)(5).) The complaint must be verified. (Code Civ. Pro., §§446, 1166, subd. (a)(1).)

Plaintiff alleges that Defendants breached the lease agreement by subletting the subject property as a residence, not maintaining the fire sprinkler, and not maintaining the required insurance coverage. (First Amended Complaint (“FAC”) ¶¶ 21-39.) Plaintiff identifies the property as 3055 Humboldt Street, Los Angeles, California. (FAC ¶14, Ex. A.) Plaintiff sets forth damages at the rate of $345.20 per day and statutory damages of $600. (FAC, Prayer.) Plaintiff states that the three-day notice was served by posting a copy of the notice in a conspicuous place on the property and then mailing a copy by U.S. mail. (FAC ¶42.) The complaint is verified.

Defendant’s arguments lack legal authority. A legal proposition asserted without apposite authority fails. (People v. Taylor (2004) 119 Cal.App.4th 628, 643.) “A judge in a civil case is not "'obligated to seek out theories [a party] might have advanced, or to articulate … that which … [a party] has left unspoken.'" (Mesecher v. County of San Diego (1992) 9 Cal. App. 4th 1677, 1686.)

The Court overrules the demurrer.

The Demurrer is OVERRULED. Defendant shall file an answer only within 5 days.