Judge: Frank M. Tavelman, Case: 24NNCV06043, Date: 2025-01-10 Tentative Ruling

Case Number: 24NNCV06043    Hearing Date: January 10, 2025    Dept: A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Holly Crossing, LLC (Plaintiff) brings the following Unlawful Detainer action against Benham Ghasseminejad (Defendant). Plaintiff alleges that Defendant has failed to pay rent pursuant to a commercial lease for a building located at 57 E. Holly St. Pasadena, CA 91103 (Subject Premises).

Before the Court is Defendant’s demur to Plaintiff’s Complaint on grounds that it fails to state a cause of action for Unlawful Detainer. Plaintiff opposes the demurrer.

The Court notes that after filing this demurrer, Defendant filed his Answer to the Complaint. While unusual, the subsequent filing of the Answer does not moot Defendant’s demurrer. C.C.P. § 430.30(c) explicitly states that a party objecting to a complaint or cross-complaint may demur and answer at the same time. As such, the Court proceeds with its analysis on the merits of the demurrer.

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 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.                 MERITS

Demurrers to Unlawful Detainer Complaints

C.C.P. § 1170 provides that a defendant in an unlawful detainer proceeding may demur to the Complaint. The Court notes that unlike the general statutory provisions governing demurrers, C.C.P. § 1170 does not require the demurring party to have met and conferred prior to filing.

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. § 1166(a)(5) requires that an unlawful detainer Complaint:

State specifically the method used to serve the defendant with the notice or notices of termination upon which the complaint is based. This requirement may be satisfied by using and completing all items relating to service of the notice or notices in an appropriate Judicial Council form complaint, or by attaching a proof of service of the notice or notices of termination served on the defendant.

As concerns the proper service of the three-day notice, C.C.P. § 1162(b) provides that such notice may be provided on a commercial tenant:

(1) By delivering a copy to the tenant personally.

(2) If he or she is absent from the commercial rental property, by leaving a copy with some person of suitable age and discretion at the property, and sending a copy through the mail addressed to the tenant at the address where the property is situated.

(3) 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. Service upon a subtenant may be made in the same manner.

Discussion

The Court finds that Plaintiff’s Complaint adequately alleges service of a three-day notice to quit such that Defendant’s demurrer must be overruled. The Court explains further below.

To begin, Defendant’s argument that the rules of liberal construction do not apply on demurrer to an unlawful detainer Complaint is unpersuasive. Defendant’s citation to Cal. Civ. Code § 1442 is inapposite, as that section pertains to the validity of conditional forfeiture and does not concern demurs to unlawful detainer matters. The cases cited by Defendant also do not support his argument, as they all concern motions for summary judgment in unlawful detainer proceedings and do not discuss the sufficiency of the pleadings. (See Kwok v. Bergren (1982) 130 Cal.App.3d 596 [confirming summary judgment]; see also Briggs v. Electronic Memories & Magnetics Corp. (1975) 53 Cal.App.3d 900 [reversing summary judgment for failure to provide notice]; see also Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511 [reversing judgment for failure to provide notice].)

Given the foregoing, the Court finds no grounds to forego the standards generally applicable to any demurrer.  As such, for Defendant’s demurrer to be successful he must demonstrate that the Complaint contains no facts in support of the allegation that a three-day notice was served on him. The absence of these facts must appear on the face of the Complaint or from judicially noticed documents.

Here, the Complaint contains sufficient factual allegations as to the service of the three-day notice. Section 9 of Plaintiff’s Complaint specifically attests that the three-day notice was served by personal service on November 7, 2024. C.C.P. § 1166(a)(5) makes clear that use of this section in the Judicial Counsel’s approved Form Complaint is sufficient to state the method of service. Further, a copy of the three-day notice is attached to the Complaint as Exhibit 3.

Defendant’s contention that he never received the notice does not appear on the face of the Complaint or from judicially noticed facts. Defendant’s argument that the three-day notice is invalid because it includes late fees is similarly beyond the scope of demurrer. Defendant may assert these defenses in his responsive pleading (indeed it appears he already has) but they are not properly considered on demurrer.

Accordingly, Defendant’s demurer to the Complaint is OVERRULED.

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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 

Benham Ghasseminejad’s Demurrer came on regularly for hearing on January 10, 2025, 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: 

DEFENDANT’S DEMURRER IS OVERRULED.

DEFENDANT’S ANSWER, FILED DECEMBER 27, 2024, IS DEEMED THE OPERATIVE RESPONSIVE PLEADING.

PLAINTIFF TO GIVE NOTICE.  

IT IS SO ORDERED. 

DATE:  January 10, 2025                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles