Judge: Gary Y. Tanaka, Case: 22TRCV00695, Date: 2022-09-16 Tentative Ruling


Case Number: 22TRCV00695    Hearing Date: September 16, 2022    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

 

 

Honorable Gary Y. Tanaka                                                                                                 Friday, September 16, 2022

Department B                                                                                                                                            Calendar No. 7

 

 

PROCEEDINGS

 

Yolanda Quimbayo v. James L. Fersch, et al.

22TRCV00695

  1. James L. Fersch’s Demurrer to Complaint  


    TENTATIVE RULING

     

                James L. Fersch’s Demurrer to Complaint is overruled.

     

                Background

     

                Plaintiff filed this action on August 12, 2022, as a residential unlawful detainer complaint with respect to property located at 7137 Avenida Altisima Rancho Palos Verdes CA 90275.

     

                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.”  Plaintiff’s Complaint states facts to meet all these requirements.  (Complaint, pages 1-4; Attached Exhibits). Plaintiff states sufficient facts to state a cause of action for unlawful detainer.

 

            Defendant argues that the Complaint fails to state sufficient facts and is uncertain.

 

            First, Defendant argues that the amount of rent stated in the 3-day notice is excessive. The Court notes that the notice demands $55,000 in rent for five months rent from April to August 2022. The rental agreement, attached to the Complaint, sets forth the rent as $11,000 per month. Thus, upon the face of the allegations, the Complaint does not set forth an excessive amount of rent. If Defendant disagrees and believes that the demand seeks rent for a month or months that were actually paid by Defendant, this would support a defense to the allegations, and not a demurrer.

 

Second, Defendant argues that Defendant provided Plaintiff with Self Certified Form COVID-19 of Tenants inability to pay rent due. This argument also relies on facts outside the scope of the pleadings and is not the proper subject of a demurrer.

 

            “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. We agree that demurrers for uncertainty are disfavored. We strictly construe such demurrers because ambiguities can reasonably be clarified under modern rules of discovery.” Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135. Here, the Complaint is not so uncertain that it renders Defendant the inability to respond.

 

            Therefore, based on the foregoing reasons, Defendant’s demurrer is overruled.

 

            Defendant is ordered to file and serve an Answer within five days of this date. 

 

Plaintiff is ordered to give notice of this ruling.