Judge: Helen Zukin, Case: 22SMCV02345, Date: 2023-03-10 Tentative Ruling
Case Number: 22SMCV02345 Hearing Date: March 10, 2023 Dept: 207
Background
Plaintiff Goldstar Investments, LLC (“Plaintiff”) brings
this action for unlawful detainer against Defendants Katherine Roshodesh (“Katherine”)
and Solomon Roshodesh (“Solomon” or, collectively with Katherine, “Defendants”)
concerning a residential property located at 811 N. Hillcrest Road, Beverly
Hills, California 90210. Defendants have each separately filed a demurrer and
motion to strike Plaintiff’s operative Complaint. As Defendants’ demurrers and
motions to strike raise identical issues and arguments, the Court will address
them together.
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.)
A special demurrer for uncertainty under Section 430.10(f) is disfavored
and will only be sustained where the pleading is so unintelligible that a
defendant cannot reasonably respond—i.e., cannot reasonably determine what
issues must be admitted or denied, or what counts or claims are directed
against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th
612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can
be clarified under modern discovery procedures.” (Id.)
Motion to Strike Standard
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The
court may also strike 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.
(Id., § 436(b).) The grounds for a
motion to strike are: the pleading has irrelevant, false, or improper matter,
or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the
face of the pleading or by way of judicial notice. (Id. § 437.)
Analysis
1. Demurrers
Defendants argue the Complaint
fails to state a cause of action against them because they claim Plaintiff does
not have standing to assert a claim for unlawful detainer against them.
Specifically, Defendants argue Plaintiff in this action is Goldstar
Investments, LLC, whereas the subject lease which forms the basis of this
action is in the name of Goldstar Investments, Inc. The Court rejects this
argument. As Plaintiff points out, the Complaint specifically alleges that
Goldstar Investments converted from a corporation to a limited liability
company on September 13, 2022. This is a factual allegation which the Court
must accept as true in ruling on Defendants’ demurrer, and thus Plaintiff had
shown it has standing to bring a claim for unlawful detainer based on the
subject lease.
Defendants also argue there can be
no cause of action against Solomon because he did not sign the subject lease.
It is undisputed the subject lease was entered into between Plaintiff and
Katherine only. (Ex. 1 to Complaint.) However, it is equally clear that
Solomon’s tenancy at the property arises from the lease between Katherine and
Plaintiff, which expressly states “The Premises are for the sole use as a
personal residence by the following named person(s) only: Katherine and Solomon
Roshodesh.” (Id. at ¶1.B.) Solomon is thus a tenant of the premises
pursuant to the written lease agreement between Katherine and Plaintiff who can
be held liable for unlawful detainer based on his failure to turn over
possession of the premises. Defendants appear to be arguing a claim for
unlawful detainer can only be brought against a party in privity with a
plaintiff. Defendants do not provide any authority for this claim and the Court
is not aware of any such limitation on unlawful detainer proceedings. Indeed, the
statutory framework giving rise to unlawful detainer claims provides such
actions may be maintained against any person occupying the premises at the time
of the filing of the action. (See, e.g., C.C.P. § 415.46.)
Defendants claim the Complaint is
ambiguous because Plaintiff did not check the box indicating the lease
agreement was for a month-to-month tenancy and instead was a lease for a
definite term from August 8, 2018, to May 31, 2020. (Complaint at ¶6.) The
Court finds nothing ambiguous or uncertain in this claim. Rather, it is
entirely consistent with the written lease attached to the Complaint which
indicates the lease was not for a month-to-month tenancy but rather was to
terminate on May 31, 2020. (Ex. 1 to Complaint at ¶2.)
Defendants contend the three-day
notice to perform covenant or quit served by Plaintiff is defective. The
notice, dated November 9, 2022, states Defendants violated the lease agreement by
operating a business from the premises and using the property to store business
property in contravention of paragraphs 1.B. and 8.B. of the lease. (Ex. 2 to
Complaint.) Defendants argue this is insufficient and the notice was required
to specifically enumerate how they were to cure these violations. Defendants’
argument is based on one partial sentence from Foster v. Williams (2014)
229 Cal.App.4th Supp. 9 which Defendants quote as stating “The tenant must be
informed of precisely what he or she must do to thereby remain in possession.”
(Demurrers at 10.) However, Defendants’ quotation omits important words. The
full quote from Foster is “The tenant must be informed of precisely what
he or she must do to pay rent and thereby remain in possession.” (Foster,
229 Cal.App.4th at 18.) This discussion of paying rent in Foster is
relevant here as that case arose under Code Civ. Proc. § 1161(2) regarding
unlawful detainer actions based on nonpayment of rent. The Foster Court
noted section 1161(2) had been amended to require specific information be
included in notices based on nonpayment of rent. Section 1161(2) provides such
notices must contain:
[T]he amount that is due, the name, telephone number, and
address of the person to whom the rent payment shall be made, and, if payment
may be made personally, the usual days and hours that person will be available
to receive the payment (provided that, if the address does not allow for
personal delivery, then it shall be conclusively presumed that upon the mailing
of any rent or notice to the owner by the tenant to the name and address
provided, the notice or rent is deemed received by the owner on the date
posted, if the tenant can show proof of mailing to the name and address
provided by the owner), or the number of an account in a financial institution
into which the rental payment may be made, and the name and street address of
the institution (provided that the institution is located within five miles of
the rental property), or if an electronic funds transfer procedure has been
previously established, that payment may be made pursuant to that procedure, or
possession of the property, shall have been served upon the tenant and if there
is a subtenant in actual occupation of the premises, also upon the subtenant.
The Court in Foster turned
to the notice before it and determined it was inadequate because “it simply
provided the name of a person, his telephone number, a URL address, and told
defendant that ‘payment shall be delivered’ to that person.” (Foster, supra,
229 Cal.App.4th at 18.) The Court held this was insufficient to indicate to
the defendant how payment was to be made to that person. (Id.)
This action arises under section
1161(3) for breach of conditions or covenants of a lease other than payment of
rent. Section 1161(3) does not contain provisions analogous to section 1161(2)
requiring notices to contain specific information to a tenant explaining how to
cure a default. Rather, section 1161(3) is satisfied by a notice “requiring the
performance of those conditions or covenants” which a tenant has failed to
perform. (C.C.P. § 1161(3).) Upon receipt of such notice, a tenant “may perform
the conditions or covenants of the lease or pay the stipulated rent, as the
case may be, and thereby save the lease from forfeiture.” (Id.)
Here, the notice plainly advised
Defendants of the covenants and conditions of the lease agreement which they
had failed to perform. To cure the default, Defendants were required to perform
those covenants. Contrary to Defendants’ claim, nothing in section 1161(3)
required Plaintiff to identify the dates of the alleged violations, the specific
location of the violations, or witnesses to the violations. The Court finds
Plaintiff’s notice was thus not defective or insufficient in its identification
of the covenants and conditions alleged to have been breached by Defendants.
Defendants allege the notice is
also deficient because it does not state that Saturdays and Sundays are
excluded from the calculation of the three days’ notice. Section 1161(3) does
provide that Saturdays and Sundays are excluded from the calculation, but does
not require this to be specifically asserted in the notice itself. As set forth
above, when the Legislature wishes to impose requirements on the content of
such notices, it does so explicitly as with section 1161(2). By contrast,
nothing in section 1161(3) requires a notice to explain to tenants how the three-days
are calculated by statute. Defendants do not cite to any authority in support
of their claim that such language must be included in a notice, and the Court
is not aware of any such authority. The Court thus rejects this argument as
well.
Defendants claim the Complaint is
uncertain as to the fair rental value of the property. Defendants’ argument
appears to be that the Complaint is unintelligible because it alleges the fair
rental value for the property which exceeds the rent owed under the lease. As set
forth above, the subject lease contemplated a term from August 2018 to May
2020. The lease itself acknowledged the fair rental value of the property would
increase over time as it provided for monthly rent of $13,000 for the first
year of the lease term, which would then increase to $13,500 for the duration
of the lease. In alleging the current fair rental value of the property is
$1,500 per day or $45,000 per month, Plaintiff is simply alleging the value of
the property has continued to increase since the end of the contemplated lease
term in May 2020. The Court also finds nothing ambiguous or uncertain regarding
this allegation of the current fair rental value of the property.
For these reasons, the Court
OVERRULES Defendants’ demurrers to the Complaint.
2. Motions
to Strike
Defendants’ motions to strike also
raise the same arguments as their demurrers. The Court rejects those arguments
for the same reasons it has overruled Defendants’ demurrers on those grounds.
In addition to restating arguments from their demurrers, Defendants’ motions
also allege the Complaint must be stricken in its entirety because it violates
the Tenant Protection Act as codified at Civil Code § 1946.2 and because
Plaintiff did not attach a proof of service of the notice of violation under
Code Civ. Proc. § 1161(3). The Court addresses each of these arguments in turn.
The Complaint alleges Defendants’
tenancy at the property is not subject to the Tenant Protection Act, claiming
exemptions under Civil Code §§ 1946.2(e)(7) and (e)(8). Defendants correctly
assert a plaintiff may only claim an exception under section 1946.2(e)(8) where
the tenants have been provided with the written notice set out at section
1946.2(e)(8)(B)(i) stating:
“This property is not subject to the rent limits imposed by
Section 1947.12 of the Civil Code and is not subject to the just cause
requirements of Section 1946.2 of the Civil Code. This property meets the
requirements of Sections 1947.12 (d)(5) and 1946.2 (e)(8) of the Civil Code and
the owner is not any of the following: (1) a real estate investment trust, as
defined by Section 856 of the Internal Revenue Code; (2) a corporation; or (3)
a limited liability company in which at least one member is a corporation.”
(Civ. Code § 1946.2(e)(8)(B)(i).)
Defendants argue this written notice is not present in the lease agreement
attached to Plaintiff’s Complaint. However, “for a tenancy existing before July
1, 2020,” this written notice “may, but is not required to, be provided in the
rental agreement.” (Civ. Code § 1946.2(e)(8)(B)(ii).) As set forth above, the
Complaint alleges Defendants’ tenancy was in existence as of August 2018 and
thus the notice language of section 1946.2(e)(8)(B)(i) was not required to be
included in the lease.
Furthermore, even if Defendants
were correct that the Complaint failed to demonstrate the property was exempt
under section 1946.2(e)(8), this would not justify the striking of Plaintiff’s
entire Complaint as requested by Defendants. The Complaint also claims an
exemption to the Tenant Protection Act under section 1946.2(e)(7). Defendants
have made no showing that the Complaint fails to sufficiently allege an
exemption under section 1946.2(e)(7), and thus Defendants have not shown a
fatal deficiency with respect to the application of the Tenant Protection Act
which merits the striking of Plaintiff’s entire Complaint.
Defendants argue Plaintiff
improperly served the three-day notice to perform by posting and mailing at the
premises, claiming under paragraph 32 of the lease, such notices could be
served at a different address. Paragraph 32 of the lease provides “Notices may
be served at the following address; or at any other location subsequently
designated” and designates a P.O. Box for Solomon as an address where the
tenants may be served. (Ex. 1 to Complaint at ¶32.) Nothing in paragraph 32
makes service at this address mandatory, rather such service is permissive as
evidenced by the use of the word “may.” It is true the lease allows services of
notices on Defendants at Solomon’s P.O. Box, but that does not mean service
could only be effectuated at that P.O. Box.
Defendants also complain that the
Complaint does not attach a proof of service for the three-day notice to
perform. The Court finds Defendants have not shown Plaintiff was required to
attach such a proof of service to its Complaint. The only authority cited by
Defendants in support of this argument is Code Civ. Proc. § 430(e), a statute
which does not exist. The Court also notes Defendants’ argument runs contrary
to the express language of Code Civ. Proc. § 1166(a)(5), which provides a
complaint for unlawful detainer must:
State specifically the method used to serve the defendant
with the notice or notices of termination upon which the complaint is based.
This requirement may be satisfied by using and completing all items relating to
service of the notice or notices in an appropriate Judicial Council form
complaint, or by attaching a proof of service of the notice or notices of
termination served on the defendant."
Section 1166(a)(5) is thus clear
that Plaintiff had the election to either fill out the services fields on the
Judicial Council form complaint or to attach a proof of service of the notice.
Plaintiff chose the former option. (Complaint at ¶10.) This is acceptable under
section 1166(a)(5).
For these reasons, the Court
DENIES Defendants’ motions to strike Plaintiff’s Complaint in its entirety.
Conclusion
Defendants’ demurrers to the Complaint are OVERRULED.
Defendants’ motions to strike the Complaint are DENIED.