Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This is an unlawful detainer action.  The real property at issue is located at 13455 Maxella Avenue, Space No. 206-260 also known as Space No. 260B, located in the City of Marina Del Rey in the county of Los Angeles, California (the “Premises”).  (Compl. ¶ 7.)  Plaintiff RAR2-Marina Marketplace LLC leased the Premises to Phenix Salon Suites, Marina Del Rey, LLC and Doe Defendants (collectively “Defendants”) pursuant to a written commercial lease agreement (“Lease”).  (Id. ¶ 8.)  

Under the Lease, Defendants were obligated to pay rent as well as common area operating costs, taxes and other expenses (collectively “Rent”).  (Id. ¶ 10.)  Plaintiff alleges that as of February 14, 2024, Defendants have failed to pay Rent in the amount of $49,252.06.  (Id. ¶ 12.)   

On February 15, 2024, Plaintiff caused to be served upon Defendants a written Notice to Pay Rent or Surrender Possession (the “Notice”) by sending the notice to Defendants via FedEx.  The Notice sets forth the nature of Defendants’ default, requires Defendants to pay the Rent due or deliver possession of the Premises within five days, and states Plaintiff’s election to declare a forfeiture of the Lease.  (Id. ¶ 13.)  More than five days have elapsed since the service of the Notice, but Defendants have not paid the full amount of Rent due nor have they vacated the Premises.  (Id. ¶14.) 

This hearing is on Defendant Linda Adams’ demurrer to the Complaint.  Adams is an unnamed doe defendant.  Adams demurs to the complaint on the following grounds: (1) the “entire complaint is devoid of any facts or factual allegations, and all of the causes of action are uncertain, unintelligible and ambiguous”, (2) the cause of action for unlawful detainer “fails to state any facts evincing all requisite requirements for an unlawful detainer,” and (3) the unlawful detainer allegations “fail to state and/or is unintelligible and ambiguous as to what constitutes a duly perfected title.”   

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)).  Accordingly, there is no consequence to Defendant not having sought to meet and confer with Plaintiff.    

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 

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 its Complaint by substitute service on March 5, 2024, and Defendant filed her demurrer on March 21, 2024.  The demurrer is untimely. 

Even if timely, the demurrer has no merit.  Landlord has properly alleged all essential elements of a cause of action for unlawful detainer pursuant to Code Civ. Proc. § 1161(2): (1) the tenant continues in possession (Compl. ¶ 16); (2) without the permission of the landlord (Id.); (3) after default in the payment of rent (Id. ¶¶ 12, 14); (4) pursuant to the lease or agreement under which the property is held (Id. ¶¶ 8, 10), and (5) after service of a notice, in writing, requiring the payment of rent (Id. ¶ 13).   

Ironically, while Plaintiff argues the allegations of the Complaint are threadbare and conclusory, Plaintiff’s own demurrer is itself lacking in any details.  There are only three alleged deficiencies in the Complaint that Plaintiff has specifically identified.  First, Plaintiff claims “the complaint is devoid of specific allegations that there was a written lease agreement.”  But the Complaint alleges that there was a written commercial lease agreement between the parties.  (Compl. ¶ 8.)  Second, Plaintiff claims there are no allegations that Plaintiff is a landlord.  But the Complaint alleges Plaintiff leased the Premises to Defendants (id.), which by implication means it is the landlord.  Third, Plaintiff claims that service of the Notice by FedEx was not proper.  But Defendants agreed to service of notices by FedEx.  (Ex. 1 to Compl., Section 27 (“any notice …. required or permitted to be delivered under this Lease … shall be transmitted … by reputable independent contract delivery service”).  And under California law, parties to a commercial lease may agree to notice requirements different from those prescribed by statute.  (Folberg v. Clara G.R. Kinney Co., Inc. (1980) 104 Cal.App.3d 136, 140-141; Devonshire v. Langstaff (1935) 10 Cal.App.2d 369, 372.) 

Therefore, the Court concludes there is no basis for the demurrer.   

 

CONCLUSION 

For the foregoing reasons, the Court OVERRULES Defendant Linda Adams’ demurrer to the Complaint.      

IT IS SO ORDERED. 

 

DATED: April 23, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court