Judge Helen Zukin, Case 22SMCV01733 2023-01-06 Tentative Ruling

Judge: Helen Zukin, Case: 22SMCV01733, Date: 2023-01-06 Tentative Ruling

Case Number: 22SMCV01733 Hearing Date: January 6, 2023 Dept: 207

Background

Plaintiff Tent 123, LLC (“Plaintiff”) brings this unlawful detainer action against Defendant Fethi Sahman (“Sahman”) concerning the commercial property located at 12328 Venice Boulevard in Los Angeles, California. Defendant brings a demurrer to Plaintiff’s operative Complaint in this action, arguing Plaintiff may not maintain a claim for unlawful detainer against him because he has surrendered possession of the subject property. Plaintiff does not oppose Defendant’s demurrer.

Request for Judicial Notice

Defendant requests the Court take judicial notice documents previously filed in this action. Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (StorMedia Inc. v. Superior Court (1999) 20 Cal. 4th 449, 457, fn. 9.) Taking judicial notice of a document is not, therefore, the same as the court accepting the truth of the document’s contents or accepting a particular interpretation of its meaning. (See Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal. App. 3d 1023, 1038.) Subject to these limitations, Defendant’s request for judicial notice is GRANTED.

Demurrer Standard

When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

Analysis

Defendant argues Plaintiff has not pled a cause of action for unlawful detainer against him because Defendant is not in possession of the subject property. Defendant asks the Court to judicially notice the Notice of Surrender he filed on November 28, 2022, in which Defendant states under penalty of perjury that he vacated the subject property on November 25, 2022, and had his attorneys return the keys to the property to Plaintiff’s counsel. As set forth above, the Court may only take judicial notice of the truth of statements contained in a judicially-noticeable document if those matters are not reasonably disputable. Plaintiff has not filed an opposition to Defendant’s demurrer or otherwise disputed Defendant’s representation that he has surrendered possession. Accordingly, the Court takes judicial notice of Defendant’s surrender of possession of the subject property.

Under Civil Code § 1952.3, where a tenant has surrendered possession prior to trial, the case ceases to be a summary proceeding under the unlawful detainer statutes and instead “becomes an ordinary civil action.” (Civ. Code § 1952.3(a).) “If the tenant gives up possession of the property after the commencement of an unlawful detainer proceeding, the action becomes an ordinary one for damages.” (Fish Constr. Co. v. Moselle Coach Works (1983) 148 Cal.App.3d 654, 658.) When this occurs, the plaintiff may elect to either pursue only the damages which would have been available in a summary unlawful detainer proceeding or seek leave of Court to amend the Complaint under Code Civ. Proc. §§ 472, 473 to seek “any other damages not recoverable in the unlawful detainer proceeding.” Alternatively, a plaintiff may choose to abandon the unlawful detainer complaint in its entirety and instead file a separate action for damages.

Plaintiff’s operative Complaint here seeks damages in the form of unpaid rent which is recoverable under Civil Code § 1951.2. Under Civil Code § 1952.3, Plaintiff may pursue such damages without amending the Complaint even though Defendant has surrendered possession. As possession is no longer at issue, this action is now an ordinary civil case for damages and is no longer governed by the procedures and judicial priority afforded actions under the summary unlawful detainer statutes. However, Plaintiff is still entitled to use this action to pursue damages from Defendant such as unpaid rent. Accordingly, the resolution of the issue of possession does not invalidate Plaintiff’s Complaint and Defendant’s demurrer is OVERRULED.

Conclusion

Defendant’s demurrer is OVERRULED.