Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is an unlawful detainer action.  Plaintiff Tribune Media Company alleges that Defendant WS Communities, LLC failed to pay rent for November 2023, December 2023 and January 2024 and is therefore subject to eviction.  The commercial property is located at 10960 Wilshire Blvd, Suite 800, Los Angeles, California (the “Property”).     

This hearing is on Defendant WS Communities, LLC’s demurrer to the Complaint.  Defendant argues that (1) there is no contractual relationship between it and Plaintiff, and therefore, Plaintiff has no standing to sue; (2) the 3 day notice to pay rent or quit demands payment of rent for November 2023 which is not a “reasonable estimate” under Code Civ. Proc. § 1161.1; (3) the Complaint alleges that no rent payment was received for December 2024, but no such demand was ever submitted; (4) the notice does not provide a method of service on Defendant thereby rendering it uncertain as neither the Court nor Defendant are able to determine whether it was served on Defendant as required by the Lease; (5) the notice demands receipt of mailing within 3 days which violates Code Civ. Proc. § 1161(2), and (6) there is no required allegation in the Complaint that the notice was served for the reasons listed in § 1161.1 and the notice directly contradicts the reasons for serving a notice pursuant to § 1161.1.  

LEGAL STANDARD 

A demurrer to a complaint may be general or special.  A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)  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.)  

A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).)  The term uncertain includes whether the pleading is “ambiguous and unintelligible.”  (Id.)  A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

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.) 

MEET AND CONFER 

In unlawful detainer proceedings, there is no requirement that a demurring defendant¿meet and confer with the party who filed the pleading being demurred to.  (Code Civ. Proc., §430.41 (d),¿(d)(2).)  Therefore,¿there is no consequence to Defendant having not sought to¿meet and confer with Plaintiff prior to filing its demurrer.   

TIMELINESS 

 

Ordinarily, an¿unlawful detainer defendant’s response is due within five days after service of the unlawful detainer summons and complaint, excluding Saturdays, Sundays, and other court holidays.¿ (Code Civ. Proc. § 1167.)  Plaintiff served her complaint on February 15, 2024 by substitute service, and Defendant filed its demurrer to the complaint on February 20, 2024, five days later.  The demurrer is timely. 

REQUEST FOR JUDICIAL NOTICE 

Defendant requests judicial notice of (1) the sublease agreement between Nextstar Broadcasting Inc. and WS Communities LLC and (2) a copy of the 3 day notice to pay fixed monthly rent or quit.  The Court grants the request pursuant to Cal. Evid. Code §§ 452(h) and 453.   

Plaintiff argues the Court cannot take judicial notice of these documents because they are not attached to the Complaint.  But they are repeatedly referenced in the Complaint.  (See, e.g., Compl. ¶¶ 5-6, 8-12, 14, 15, 17).  Where a plaintiff¿references a document in his or her¿complaint, but fails to attach a copy of that document to the¿complaint, the Court may¿take judicial notice of the document.¿(See, e.g., Marina Tenants Ass'n v. Deauville Marina Dev. Co.¿(1986) 181 Cal.App.3d 122, 130¿(taking judicial notice of master lease that was quoted in complaint and formed the basis of the¿allegations in the¿complaint);¿Purcell v. Colonial Ins. Co. (1971) 20 Cal.App.3d 807, 810¿(taking judicial notice of agreement not attached to the¿complaint).  

DISCUSSION 

 

As a preliminary matter, the Court addresses Plaintiff’s argument that the sublease and the 3 day notice have not been properly authenticated.  The issue of whether the Court can¿take judicial notice of a document is separate from whether the party has¿properly authenticated the documents for which judicial notice is requested.  

To satisfy the requirement of authenticating an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. ¿(Evid. Code 1400.).  Therefore, before evidence can be admitted, the proponent must lay a foundation by evidence sufficient to find that item is what it is purported to be.¿ (Id.) 

Here, Defendant has not submitted any declaration stating that the sublease and 3 day notice are true and correct copies.  And even if it had, it is not enough to authenticate a document by attaching it to a declaration stating that it is a true and correct copy of what it is purported to be.¿The documents must be authenticated and attached to a declaration wherein the declarant is the person through whom the exhibits could be admitted into evidence.¿  

As the sublease and 3 day notice are the only bases for Defendant’s demurrer, the fact they are not properly authenticated means there is no ground for Defendant’s demurrer.    

CONCLUSION 

Based on the foregoing, the Court OVERRULES the demurrer.   

 

IT IS SO ORDERED. 

 

DATED: March 20, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court