Judge: Elaine W. Mandel, Case: 24SMCV04157, Date: 2024-10-22 Tentative Ruling

Case Number: 24SMCV04157    Hearing Date: October 22, 2024    Dept: P

Tentative Ruling

Playa Villas Malibu v. Burke, Case no. 24SMCV04157

Hearing date October 22, 2024

Defendants’ Demurrer to Plaintiff’s Complaint

Defendant tenants, in pro per, demur in this unlawful detainer failure to pay rent case under Cal. Code Civ. Proc. §§4301.10 and 1170.

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must allege essential facts “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.

Per Cal. Code Civ. Proc. §1161(2) plaintiff must allege: (1) a landlord-tenant relationship; (2) default on payment of rent; (3) service of a three day notice to pay rent or quit; (4) non-compliance with the notice; and (5) continued possession. Plaintiff filed a Judicial Council Form Complaint Unlawful Detainer and alleged all necessary elements under Cal. Code Civ. Proc. §1161(2). See Compl. generally.

Defendants argue the complaint states the subject property is not subject to the Cal. Tenant Protection Act (“TPA”) under Cal. Code Civ. Proc. §1946.2(G). Compl. para. 7. Defendants assert plaintiff failed to include information required under the TPA in its notice to terminate tenancy.

Plaintiff argues this is not an issue for demurrer, and plaintiff alleged defendants are exempt from the TPA. Id. As the court must accept all facts alleged as true for purposes of demurrer, this is sufficient to survive demurrer.

Defendants next argue plaintiff failed to plead actual knowledge as required under Los Angeles’ Just Cause Ordinance (“JCO”) and did not serve the Los Angeles Housing Department (“LAHD”) with notice.

Plaintiff alleged full compliance with the JCO (Compl. para. 16) and attached proof of service on LAHD (Compl. ex. 2). This is sufficient to survive demurrer.

Defendants finally argue plaintiff is an LLC, so the complaint must be verified by a managing member. Plaintiff argues a motion to strike under Cal. Code Civ. Proc. §435 is the exclusive method to challenge a verification to a complaint. Perlman v. Municipal Court (1979) 99 Cal. App. 3d 568; CEB: California Landlord-Tenant Practice (Second Ed.), §10.45. Plaintiff further argues a verification is not an element of a cause of action for unlawful detainer, so failure to verify a complaint does not render it subject to a demurrer. See Butterfield v. Graves (1902) 138 Cal. 155.

Unlawful detainer complaints are required to be verified. Cal. Code Civ. Proc. §1166. Plaintiff’s complaint is verified by Daniel Kidder, plaintiff’s director of community management services. Compl. p. 6. Plaintiff asserts an affidavit of verification by an agent of a party is sufficient. City of Los Angeles v. Superior Court of Los Angeles County (1925) 196 Cal. 445; H.G. Bittleston Law & Collection Agency v. Howard (1916) 172 Cal. 357.

Substantial compliance with Cal. Code Civ. Proc. §1166 is sufficient. People v. Superior Court (1989) 207 Cal.App.3d 464, 469-71. Further, absent an allegation of bad faith, a claim of inadequate verification is without merit. Frio v. Superior Court (1988) 203 Cal.App.3d 1480. Additionally, demurrer is not the proper means to challenge an allegedly defective verification.

OVERRULED. Defendants to answer within 5 days.