Judge: Frank M. Tavelman, Case: 22BBCV00905, Date: 2023-02-03 Tentative Ruling

Case Number: 22BBCV00905    Hearing Date: February 3, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

MP:     Robert Baker (Defendant)

RP:     Essex Portfolio LP (Plaintiff)

ALLEGATIONS:

Plaintiff Essex Portfolio LP (“Essex”) filed suit against Defendant Robert Baker dba Millennium Dance Company (“Baker”), alleging that Baker has failed to pay rent in the amount of $37,620.

HISTORY:

The Court received the Demurrer and Motion to Strike filed by Baker on December 13, 2022; the opposition filed by Essex on January 20, 2023; and the reply filed by Baker on January 26, 2023.

RELIEF REQUESTED:

Baker demurs to the entire Complaint.

ANALYSIS:

Demurrer

I.          LEGAL STANDARD

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

II.        MEET AND CONFER

C.C.P. § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (C.C.P. §§ 430.41(a)(4); C.C.P. 435.5(a)(4).)

Baker submits no declaration or other document which indicates that the meet and confer requirements have been met. The parties are admonished to submit such declarations in the future.  Regardless, the Court will consider the merits of the demurrer.

III.       MERITS

The basic elements of unlawful detainer for nonpayment of rent contained in C.C.P. § 1161(2) are “(1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed.”¿ (Kruger v. Reyes¿(2014) 232 Cal.App.4th Supp. 10, 16.)¿¿¿

C.C.P. §1162(b)(3) provides that notice can be served “if, at the time of attempted service, a person of suitable age or discretion is not found at the rental property through the exercise of reasonable diligence, then by affixing a copy in a conspicuous place on the property, and also sending a copy through the mail addressed to the tenant at the address where the property is situated.”  

Baker argues that Essex fails to state a claim because the Complaint contains insufficient facts as to the proper service with written three-day notice. Attached to the complaint is the affidavit of Paul Lee attesting that on September 29, 2022, after he could find no person of suitable age or discretion at Millennium Corp. Dance Company, he posted notice in a conspicuous place and subsequently mailed the three-day notice to the tenant. Nothing on the face of this affidavit appears to be in violation of C.C.P. § 1162(b)(3). Baker argues in reply that the facts in exhibits of the complaint are given precedence over inconsistent allegations in the complaint. The Court does not find the allegations of the Complaint and the allegations of its exhibits to be inconsistent.

Baker’s plain contention that he never received the three-day notice has no bearing on the sufficiency of Essex’s Complaint absent any further argument. The test on demurrer is whether Essex has alleged fact sufficient to state its cause of action, which it has done through its provision of the three-day notice and proof of service.

V.        CONCLUSION

The Court thus OVERRULES the demurrer. Pursuant to CRC Rule 3.3120 (g), Baker is granted leave to render an answer within five calendar days.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Robert Baker’s Demurrer came on regularly for hearing on February 3, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS OVERRULED.

LEAVE IS GRANTED TO FILE AN ANSWER WITHIN FIVE CALENDAR DAYS.

IT IS SO ORDERED.

DATE:  February 3, 2023                               

_______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles