Judge: Frank M. Tavelman, Case: 25NNCV01228, Date: 2025-04-18 Tentative Ruling

Case Number: 25NNCV01228    Hearing Date: April 18, 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: 

Universal Shopping Plaza, a California Limited Partnership (Defendant) brings this unlawful detainer action against Piong Bin Hong dba Five Star Restaurant (Plaintiff). Defendant seeks possession of the property commonly identified as 140 W. Valley Blvd, #D4 San Gabriel, CA 91776 (the Subject Premises). Defendant also seeks to recover $65,988.59 in unpaid rent. 

Defendant has filed a “Notice of Unlawful Detainer” which appears to have been posted at the Subject Premises on February 26, 2025. On March 12, 2025, Plaintiff filed a demurrer to Defendant’s Complaint. Plaintiff argues that the cause of action for unlawful detainer alleges insufficient facts. Specifically, Plaintiff argues that:

[T]he 3-Day Notice to Pay Rent or Quit served upon Defendant on February 12, 2025, requiring Defendant to pay unpaid rent in the amount of $65,988.59, was more than one year after the rent was due, and therefore, in violation of C.C.P. § 1161(2).

On March 19, 2025, the Court granted Defendant’s ex parte application to shorten the hearing date for Plaintiff’ demurrer.

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.)

II.                 MERITS

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. 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. (C.C.P. §§ 430.41(a)(4).) Plaintiff is admonished to meet and confer with opposing counsel in the future, and if such meet and confer occurred to file an appropriate declaration.

Discussion

Defendant argues that the demurrer is proper because the amount due is derived from unpaid rent exceeding the one year limitation in C.C.P. § 1161(2). (See C.C.P. § 1161(2) [“The notice may be served at any time within one year after the rent becomes due.”].) Defendant argues at length that the amount sought by Plaintiff is for rent which was due more than one year from the service of the notice. This issue cannot be properly resolved upon demurrer. Such a determination would require the Court to rely on Defendant’s declaration and extrinsic documentation not memorialized in the Complaint, neither of which may be considered upon demurrer.

Accordingly, Defendant’s demurrer 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 

Piong Bin Hong dba Five Star Restaurant’s Demurrer came on regularly for hearing on April 18, 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 IS OVERRULED.

PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED.