Judge: Elaine W. Mandel, Case: 24SMCV03946, Date: 2024-11-26 Tentative Ruling

Case Number: 24SMCV03946    Hearing Date: November 26, 2024    Dept: P

Tentative Ruling

SM 10000 v. Chakchay, Case no. 24SMCV03946

Hearing date November 26, 2024

Defendant’s Motion to Strike Punitive Damages

Plaintiff SM 10000 Property, LLC sues defendants Michael Chakchay, Maya Haider and Georgio Chakchay for unlawful detainer arising from unpaid rent. Defendants move to strike plaintiff’s prayer for prejudgment interest per Code Civ. Proc. §436.

“When the proceeding is for an unlawful detainer after default in the payment of rent… and, if the lease or agreement is in writing, is for a term of more than one year, and does not contain a forfeiture clause… a writ shall not be issued to enforce the judgment until the expiration of 5 days after the entry of the judgment during which time the tenant… may pay into the court… the amount found due as rent, with interest thereon, and the amount of the damages found by the jury or the court for the unlawful detainer, and the costs of the proceedings.” Code Civ. Proc. §1174(c). Defendant’s response shall be filed within five days, after service. Code Civ. Proc. §1167(a).

Plaintiff argues the motion is untimely, as per Cal. Code Civ. Proc §§435(b)(1) and 1167(a), the deadline to file a responsive pleading is 5 days after service. Defendants Georgio Chakchay and Haider were personally served 9/26/24 and 10/9/24, respectively. Decl. Ishu para. 2; exh. 2. Plaintiff argues defendant Michael Chakchay was substitute served via on Georgio Chakchay and Haider, so the latest date to file a responsive pleading was 10/17/24.

Defendants filed the MTS 11/1/24 but did not address the issue of timeliness in the motion. Defendants filed and withdrew a previous demurrer on 10/3/24. As the deadline to file a responsive pleading to an unlawful detainer complaint is 5 court days after service, the motion is untimely.

Defendants argue plaintiff failed to verify the complaint, arguing the signature of Nicole Brown is insufficient, as plaintiff is a corporation. Plaintiff argues the complaint is properly verified per H.G. Bittleston Law & Collection Agency v. Howard (1916) 172 Cal. 357, 156 (holding a plaintiff corporation’s pleading “might be verified by another than an officer thereof. The requirement of this section, that an officer of the corporation verify the pleading, being permissive, and not exclusive.”) Brown is the manager who signed the lease with defendants, qualifying her to verify the complaint.

Defendants argue prejudgment interest is unavailable in unlawful detainer cases, citing Hudec v. Robertson (1989) 210 Cal. App. 3d 1156, 1162. As Hudec was not an unlawful detainer case based on nonpayment of rent, damages relating to nonpayment of rent were not available. Id. at 1163. Hudec noted prejudgment interest is available in unlawful detainer cases for nonpayment of rent, as here. Id. Cal. Code Civ. Proc. §1164(c) provides for payment of rent, including interest, as satisfaction of judgment against a non-paying tenant. Prejudgment interest is available in an unlawful detainer complaint for nonpayment of rent. The motion is untimely and incorrect as a matter of law. DENIED.