Judge: Edward B. Moreton, Jr., Case: 23SMCV04824, Date: 2023-12-14 Tentative Ruling

Case Number: 23SMCV04824    Hearing Date: December 15, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

JASON WAGGONER, TRUSTEE OF THE WAGGONER FAMILY TRUST, Plaintiff, v. SHELON DOUGLAS, Defendant. Case No.: 23SMCV04824 Hearing Date: December 15, 2023 ORDER RE: DEFENDANT SHELON DOUGLAS’ DEMURRER TO UNLAWFUL DETAINER COMPLAINT

BACKGROUND

This is an unlawful detainer action. Plaintiff Jason Waggoner as trustee of the Waggoner Family Trust (“Landlord”) is the owner of a home located at 236 Waterview St. Playa Del Rey, CA 90293 (“Property”). Defendant Shelon Douglas (“Tenant”) leases the Property and has failed to pay rent.

This hearing is on Tenant’s demurrer to the complaint. Tenant maintains that Landlord cannot bring an unlawful detainer action pursuant to Civ. Code §1942.4 because the Property has been declared “substandard” by the Los Angeles Department of Building & Safety (“LADBS”). The “Substandard Order” noted hazardous plumbing and electrical wiring, cracked retaining wall and illegal occupancy due to non-permitted garage conversion.

REQUEST FOR JUDICIAL NOTICE

Tenant requests judicial notice of (1) a City of Los Angeles Department of Building and Safety – Substandard Order and Notice of Fee, (2) City of Los Angeles – Recorded Notice of Building(s), Structure(s) or Premises Classified as Either Hazardous, Substandard or a Nuisance – Abatement Proceedings, (3) Legislative Counsel’s Digest – Assembly Bill 647, Chap. 109, 2003-04 Session, and (4) Senate and Assembly Floor Analysis – Assembly Bill 647, Chap. 109, 2003-04.

The request for judicial notice fails to attach any of these documents, and accordingly, the Court denies the request. Further, the relevance of the last two documents is unclear as they are not mentioned in the demurrer, and the request for judicial notice as to these two documents is denied for this additional reason.

LEGAL STANDARD

“[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 Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in 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 Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the

complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

DISCUSSION

Tenant argues that Landlord cannot bring an unlawful detainer action pursuant to Cal. Civ. Code § 1942.4 because a Notice of Code Violation was issued on November 10, 2022 and defective conditions cited in the Notice of Code Violation still existed at the time Landlord issued the 3 day notice and filed this action. Tenant’s arguments go beyond the face of the complaint and rely on facts that are not judicially noticeable. Even assuming the Court were to take judicial notice of the notice of code violation (which Tenant failed to attach to his request for judicial notice), the fact that the defective conditions in the notice still existed at the time Landlord issued the 3 day notice would not have been a proper subject for judicial notice. Tenant’s arguments are better raised and addressed in a motion for summary judgment.

CONCLUSION

For the foregoing reasons, the Court overrules Tenant’s demurrer to the complaint.

DATED: December 15, 2023 ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court