Judge: Frank M. Tavelman, Case: 25NNCV00664, Date: 2025-04-04 Tentative Ruling

Case Number: 25NNCV00664    Hearing Date: April 4, 2025    Dept: A

DEMURRER & MOTION TO STRIKE

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: 

Allen H. Lasko Living Trust (the Trust) brings this unlawful detainer action against Ruth Jainese (Defendant).

Allen H. Lasko (Decedent) is alleged to have been the owner of the property located at 376 Hill St, Monrovia, CA 91016 (the Subject Premises). On January 6, 2024, Allen H. Lasko (Decedent) passed away. It is alleged that, as the result of Decedent’s passing, ownership of the property shifted to the Trust. The Trust is administered by Terry Lasko.

Defendant is alleged to have been the caretaker for Decedent. It is alleged that in her capacity as caretaker, Defendant would occasionally stay at the Subject Premises. It is further alleged that upon Decedent’s passing, Defendant unlawfully took possession of Subject Premises and remains living there at current.

Before the Court is a Demurrer and Motion to Strike brought by Defendant. Defendant demurs to the entire Complaint on grounds that the Trust has no standing to bring this action. (See C.C.P. § 430.10(b).) Defendant also demurs to the entire Complaint on grounds that it fails to adequately plead service of a 3-Day Notice to Vacate. (See C.C.P. § 1162.) Lastly, Defendant moves to strike the request for attorney’s fees located at paragraph 19(d) in the Complaint.

ANALYSIS: 

I.                    LEGAL STANDARD 

Demurrer

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.)

Motion to Strike

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)

The Court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. § 436 (b).)

II.                 MERITS

Meet and Confer

C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. The Court notes that no meet and confer declaration was filed in connection with this demurrer. Regardless, 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).)

Discussion

Standing

The Court finds Defendant’s demurrer to the Complaint on grounds that the Trust lacks standing to be meritorious. Defendant is correct that a Trust is an entity which cannot maintain an action in tort. (See Portico Management Group, LLC v. Harrison (2011) 202 Cal.App.4th 464, 473 [“A trust itself cannot sue or be sued…. a trust is simply a collection of assets and liabilities, it does not hold any legal title.”].) Actions on behalf of a trust are properly maintained by the trustee, as they are the real party in interest. (Id.)

Here, the naming of Allen H. Lasko Living Trust as the Plaintiff in this action is improper. Regardless, it is clear that Terry Lasko is alleged to be the administrator of the trust. (See Compl. p. 13, ¶ 2.) As the defect is easily rectifiable upon amendment, the Court sustains the demurrer on these grounds with 20 days’ leave to amend.

3-Day Notice

Although the demurrer has been sustained on the grounds of lack of standing, the Court finds a discussion of the 3-Day Notice appropriate as it bears on potential amendment and subsequent demurrer.

C.C.P. § 1166 sets forth the pleading requirements of an unlawful detainer complaint and provides, in relevant part: "The complaint shall: (1) Be verified and include the typed or printed name of the person verifying the complaint. (2) Set forth the facts on which the plaintiff seeks to recover. (3) Describe the premises with reasonable certainty. (4) If the action is based on paragraph (2) of Section 1161, state the amount of rent in default. (5) State specifically the method used to serve the defendant with the notice or notices of termination upon which the complaint is based."

Here, Defendant contends that the Complaint fails to state specifically the method of service for the 3-Day notice. Defendant argues that the notice presents three potential means of service (personal, substitute, and posting), but does not clearly indicate which was used. The Court finds this argument unpersuasive, as the Complaint sufficiently identifies that the 3-Day notice was served via posting at the Subject Premises.

The Complaint attaches the 3-Day notice twice, as Exhibits 2-1 and 3-1. This repeated inclusion appears to be an oversight as the notices appear to be identical. The notice is dated January 24, 2025 and is signed by Warren Morten (Morten), counsel for the Trust. (Compl. p. 5.) The proof of service for the notice is signed by Morten. (Id.) While the proof of service does present three potential methods of service, it is very clear that Morten circled the “post and mail” option. Further, the certified mail receipt for the notice is attached as Exhibit 3-3. (Compl. p. 9.) Further still, a picture of the notice taped to the door of the Subject Premises is attached as Exhibit 3-4. (Compl. pgs. 11-12.) Together, these exhibits are sufficient to allege that service was made via posting at the Subject Premises and mailed thereafter via certified mail.

Motion to Strike

The Court sustaining the demurrer to the entire Complaint renders the motion to strike MOOT. Regardless, as with the 3-Day Notice, the Court finds a discussion of the motion to strike to be appropriate. Defendant moves to strike the request for attorney’s fees, arguing that the Complaint alleges no facts indicating the Trust is entitled to such fees. For reasons set forth below, the Court finds this argument persuasive.

Generally speaking, each party to a lawsuit must pay his or her own attorney's fees unless a statute or contract provides otherwise. (Hart v. Clear Recon Corp. (2018) 27 Cal.App.5th 322, 326.) Here, the Complaint does not allege any contractual or statutory basis which would entitle the Trust to attorney’s fees.

The Complaint specifically alleges that, “[t]here is no lease, rental contract, or any other written agreement granting [Defendant] tenancy rights to the property.” (Compl. p. 13, ¶ 7.) There are no allegations speaking to any other type of written agreement by which the Trust could recover attorney fees, and the opposition does not contend that any such agreement exists. The appears to be no contractual grounds for the recovery of attorney’s fees and no reasonable possibility that the Trust could assert them.

As concerns statutory grounds, the Trust argues that “[s]tatutory grounds may support an attorney’s fee award under certain unlawful detainer circumstances.” (Opp. p. 3.) Despite setting forth this argument, the Trust does not endeavor to explain what these circumstances are or identify the statutes from which they are derived. Even if such circumstances were identified, the Trust has made no effort to explain why they would apply here.

The Trust’s argument that an award of attorney’s fees can be supported by C.C.P. §§ 128.5 and 128.7 is similarly unpersuasive. These statutes are not stated as grounds for recovery in the Complaint. Even if they were, the statutes do not authorize the type of relief the Trust requests.

C.C.P.§ 128.5 vests the Court with discretion to order a party to pay reasonable expenses, including attorneys fees, incurred by another party as a result of bad faith “actions or tactics”. (C.C.P. § 128.5(a).) This statute only authorizes the Court to assess sanctions upon a noticed motion by the party, or upon its own motion. (C.C.P. § 128.5(c).)  The language of the statute does not contemplate entitlement to attorneys fees as part of a party’s operative pleading. C.C.P. § 128.7 is much the same, vesting the Court with the power to sanction an attorney to endorse papers filed with the Court. Simply put, these statutes do not authorize the Trust to plead that they are entitled to attorney’s fees.

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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 

Allen H. Lasko Living Trust’s Demurrer and Motion to Strike came on regularly for hearing on April 4, 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: 

THE DEMURRER TO THE ENTIRE COMPLAINT ON GROUNDS THAT THE ALLEN H. LASKO LIVING TRUST LACKS STANDING IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO STRIKE IS MOOT. 

IT IS SO ORDERED.