Judge: Gary Y. Tanaka, Case: 22TRCV00543, Date: 2022-09-29 Tentative Ruling

Case Number: 22TRCV00543    Hearing Date: September 29, 2022    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

 

 

Honorable Gary Y. Tanaka                                                                                             Thursday, September 29, 2022

Department B                                                                                                                                             Calendar No. 7

 

 

PROCEEDINGS

 

Flores Estates Investments, LLC v. Robert Spicer III, et al.

22TRCV00543

  1. Robert Spicer’s Demurrer to First Amended Complaint    


    TENTATIVE RULING

     

                Robert Spicer’s Demurrer to First Amended Complaint is sustained with five days leave to amend.

     

                Background

     

                Plaintiff filed the Complaint on July 5, 2022.  The First Amended Complaint was filed on August 2, 2022.  This action was filed as a residential unlawful detainer complaint with respect to property located at 10816 Yukon Avenue Inglewood, CA 90303.

     

                Demurrer

     

                Delta Imports v. Municipal Court (1983) 146 Cal.App.3d 1033, 1036 holds that a motion to quash service of summons is the proper procedure to test whether a complaint states a cause of action for unlawful detainer.  However, other recent cases have held that a demurrer is the appropriate method to challenge whether a complaint states a valid cause of action for unlawful detainer.  See, Borsuck v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 610.  Here, Defendant has filed and served a demurrer.  In any event, whether brought as a demurrer or motion to quash, the defect in the pleading must appear on the face of the Complaint.  See Serrano v. Priest (1971) 5 Cal.3d 584, 591.

     

                A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)  In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The Court may not consider contentions, deductions, or conclusions of fact or law.  (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.)  Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action.  (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.)  Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer.  (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

     

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer."  (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)  Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.”  Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

CCP § 1166 sets forth the pleading requirements of an unlawful detainer complaint.  CCP 1166(a) states, 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.”  

 

            Defendant argues that the First Amended Complaint fails to state sufficient facts and is uncertain.  Defendant contends that Plaintiff failed to attach the proof of service of the notice to quit in compliance with CCP § 1166(a)(5).  The Court finds that Plaintiff’s First Amended Complaint failed to adequately set forth facts as to the method of service of the notice to quit.

 

            Therefore, based on the foregoing reason, Defendant’s demurrer is sustained with five days leave to amend.

 

Defendant is ordered to give notice of this ruling.