Judge: Frank M. Tavelman, Case: 23BBCV01757, Date: 2023-09-14 Tentative Ruling

SUBMITTING ON THE TENTATIVE
Generally, the Court will post tentative rulings prior to a hearing; however, the Court does not always do so.  If the parties wish to avoid a court appearance and submit on the tentative ruling, then all counsel must confer and agree to do so.   Each counsel must then contact the Court and advise they have spoken to opposing counsel and will submit on the tentative.  All counsel seeking to submit on a tentative must call Dept A no later than 8:45 a.m. on the hearing day or in lieu may indicate the party is submitting during calendar check-in. Notice of the ruling must be served as indicated in the tentative. If any party declines to submit on the tentative ruling, then all parties should appear at the hearing in person or remotely.
 

Case Number: 23BBCV01757    Hearing Date: September 14, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

ALLEGATIONS:

Myrthel T. Pierre (“Plaintiff”) brings this action for unlawful detainer against Sandra Kleinschmitt, Sean Barlow, Wayne Kleinschmitt (“Defendants”). Plaintiff alleges Defendants are in the unlawful possession of the real property known as 11122 Hortense St., Toluca Lake, CA 91602. Plaintiff also seeks unpaid rent in the amount of $35,000.

Defendants, each of them in pro per, now demur to the entirety of the complaint.

ANALYSIS:

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. (Id.)

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 318.)

Pursuant to Code of Civil Procedure (“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 without leave to amend 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.)

II.          MEET AND CONFER

C.C.P. §§ 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. No meet and confer declaration accompanies Defendants’ filing.  The Court will nevertheless consider the motion given the time sensitive nature of Unlawful Detainers.

III.          MERITS

Defendants demur to the Complaint solely on grounds that it is not verified. Defendants cite to C.C.P. § 1166 (a)(1), which does indeed require the complaint in a matter be verified.

A review of the Complaint reveals it is verified. Page four of the Complaint contains a sections entitled “VERIFICATION” in large, bolded letters. This section contains a statement that reads:

I am the plaintiff in this proceeding and have read this complaint. I declare under the penalty of perjury under the Laws of the State of California that the foregoing is true and correct.

Plaintiff’s typewritten name and her signature are present below the verification.

Accordingly, the demurrer is OVERRULED.

The Court fails to understand how Defendants concluded that the Complaint was unverified. The Court reminds Defendants frivolous motions are subject to sanctions pursuant to C.C.P. § 1287, should Plaintiff elect to seek them.

“Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. [Citation.]” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189.) “A claim is factually frivolous if it is ‘not well-grounded in fact’ and is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’ [Citation.] In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ [Citations.]” (Id.) No showing of bad faith is required. (In re Marriage of Reese & Guy 73 Cal.App.4th 1214, 1221.)

RULING:

In the event the parties request 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

Sandra Kleinschmitt, Sean Barlow, Wayne Kleinschmitt’s Demurrer came on regularly for hearing on September 14, 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 OVERRRULED

DEFENDANTS ARE TO FILE A RESPONSIVE PLEADING WITHIN 5 DAYS.

CLERK TO GIVE NOTICE, UNLESS ALL PARTIES WAIVE NOTICE.

IT IS SO ORDERED.

DATE:  September 14, 2023                              

_______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles