Judge: Helen Zukin, Case: 23SMCV01928, Date: 2023-07-11 Tentative Ruling

Case Number: 23SMCV01928    Hearing Date: July 11, 2023    Dept: 207

Background

Terry Hall (“Plaintiff”) owns and manages real property located at 1904 Linda Flora Drive (the “Property”) in Los Angeles County within the City of Los Angeles. Plaintiff is filing an unlawful detainer action against Edward Kushell (“Defendant”) a tenant at the Property for unpaid rent from October 1, 2021 through January 31, 2023 which totals $57,336.00 (Complaint, ¶ 2 and Plaintiff’s Mandatory Cover Sheet and Supplemental Allegations—Unlawful Detainer, ¶ 10.) The complaint alleges that on or about March 31, 2023, Plaintiff had Defendant served, via posting and mailing, with a three-day notice to pay rent or quit (the “Notice”) demanding $57,336.00 in unpaid rent. (Id. ¶¶ 9–10, Exs. 2 & 3.) Defendant has filed a demurrer to the Complaint. Plaintiff opposes the demurrer.       

Discussion on Demurrer

A. Demurrer Standard –

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4^th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4^th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4^th 962, 967.)

B. Demurrer Analysis –

The elements of unlawful detainer for nonpayment of rent contained in CCP § 1161(2) are “(1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written notice; and (5) the default continues after the three-day notice period has elapsed.” (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16.) Having reviewed the Notice, the Court finds that it complies with the requirements of CCP § 1161(2). The Notice demands rent in line with the monthly rate alleged in the complaint, notifies Defendant the time in which he must comply, and contains sufficient information regarding how the unpaid rent is to be paid. The complaint also alleges that Defendant was served with the Notice via posting and mailing on March 31, 2023, and that Defendant failed to comply with the Notice before it expired. Accordingly, the court finds that the complaint adequately states a cause of action for unlawful detainer pursuant to CCP § 1161(2).

On Demurrer, Defendant relies on Los Angeles Municipal Code § 49.99.2(A) arguing that rental arrears accumulated between October 1, 2021 and January 31, 2023 do not need to be paid until February 1, 2024, and that an unlawful detainer action is premature. Nothing in this section, however, precludes an owner from bringing an unlawful detainer case for failure to pay rent. Rather, as set forth in LAMC § 49.99.6, the protections afforded by Section 49 may be raised as affirmative defenses in unlawful detainer proceedings.

Defendant also argues that Plaintiff did not allege that they complied with the notice requirements imposed by the Just Cause Eviction Ordinance of the City of Los Angeles, however, Defendant does not explicitly contend that Plaintiff failed to do so. At any rate, whether Plaintiff complied with the ordinance is a disputed fact, which is not appropriately settled at the demurrer stage. “For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true…” (Aubry, supra at 967.)

Conclusion

Accordingly, the Demurrer is OVERRULED.