Judge: Joel L. Lofton, Case: 22AHCV00409, Date: 2022-08-29 Tentative Ruling
Case Number: 22AHCV00409 Hearing Date: August 29, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: August 29, 2022 TRIAL DATE: No date set
CASE: LIHUI FAN, an
individual, v. DEREK JONES, an individual; REALIZE VENTURES LLC, a Delaware
limited liability company; JOCELYN REYES, an individual; and DOES 1 to 10,
inclusive.
CASE NO.: 22AHCV00401
DEMURRER
WITH MOTION TO STRIKE
MOVING PARTY: Defendant Derek Jones
RESPONDING PARTY: Plaintiff Lihui Fan
SERVICE: Filed
July 5, 2022
OPPOSITION: Filed
August 16, 2022
REPLY: Filed August 22, 2022
RELIEF
REQUESTED
Defendant Derek Jones
demurrers to Plaintiff’s complaint and moves to strike various portions of
Plaintiff’s form complaint.
BACKGROUND
This unlawful detainer action arises
out of Plaintiff Lihui Fan’s (“Plaintiff”) claim that Defendants Derek Jones (“Defendant”),
Realize Ventures LLC (“Realize”), and Jocelyn Reyes (“Reyes”) failed to pay
rent pursuant to a written agreement. Plaintiff alleges that Defendants owed
$16,000 at the time the 3-day notice to pay rent or quit was served. Plaintiff
filed this complaint on June 23, 2022.
TENTATIVE RULING
Defendant’s demurrer is overruled.
Defendant’s
motion to strike is denied.
LEGAL STANDARD
Demurrer
A general
demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to
constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or by proper judicial
notice. (Code Civ. Proc. section
430.30(a).) A demurrer tests the pleadings alone and not the evidence or
other extrinsic matters. (SKF Farms v. Superior Court (1984) 153
Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn v.
Mirda, supra, 147 Cal.App.4th 740, 747.)
Additionally, a
special demurrer to a complaint may be brought on the ground the pleading is
uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based
on uncertainty is disfavored and will be strictly construed even when the
pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th
612, 616.) A demurrers based on uncertainty are “granted only if
the pleading is so incomprehensible that a defendant cannot reasonably respond.”
(Lickiss v. Financial Industry Regulatory Authority (2012) 208
Cal.App.4th 1125, 1135.)
Motion to Strike
Any party, within the time allowed to respond to a pleading
may serve and file a notice of motion to strike a pleading or any part
thereof. (Code Civ. Proc., § 435, subd. (b)(1).) 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, subd. (a).) The court may
also strike all or any part of any pleading not drawn or filed in conformity
with California law, a court rule, or an order of the court. (Code Civ.
Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one
that is not essential to the statement of a claim or defense; is neither
pertinent to nor supported by an otherwise sufficient claim or defense; or a
demand for judgment requesting relief not supported by the allegations of the
complaint. (Code Civ. Proc., 431.10, subd. (b).) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (Code Civ. Proc., § 437.)
DISCUSSION
Time to Respond
“On or before the day fixed for his appearance, the
defendant may appear and answer or demur.” (Code Civ. Proc. section 1170.) “In
any action under this chapter, unless otherwise ordered by the court for good
cause shown, the time allowed the defendant to answer the complaint, answer the
complaint, if amended, or amend the answer
under paragraph (2), (3), (5), (6), or (7) of subdivision (a) of Section 586 shall
not exceed five days.” (Code Civ. Proc section 1167.3.)
Defendant submitted his response to the operative complaint, in this case
a demurrer, past the five days allowed by Code of Civil Procedure section
1167.3 Defendant’s demurrer is untimely. The Court nonetheless reviews the substantive issues raised by Defendant’s
demurrer.
Demurrer
Defendant argues five grounds for
the present demurrer. Defendant asserts that (1) the Court has no jurisdiction
over this case, (2) Plaintiff does not have legal capacity to sue, (3) there is
a misjoinder of parties, (4) the pleadings does not state sufficient facts, and
(5) the pleading is uncertain.
The Court notes that although
Defendant facially raises the issue of misjoinder and uncertainty, Defendant
does not provide any supporting authority for his proposition that the
pleadings are objectionable on these grounds. Thus, Defendant’s arguments regarding
these issues are rejected.
Lack
of Jurisdiction
Defendant
also argues that the Court lacks jurisdiction because Plaintiff alleges less than
the required $25,000 to bring an unlimited civil case. However, the complaint
alleges that at the time of the 3-day notice, the amount of rent due was
$16,000. (Complaint at p. 3, section 12.) Further, the Complaint alleges that
the fair rental value of the premises was $266.67 per day, starting from June
1, 2022. The complaint was filed on July 5, 2022, 34 days after the start of
the alleged damages. At the time of filing, the Complaint alleges that Defendants
owe $25,066.78 in damages, which is sufficient to allege that this Court has
jurisdiction.
Defendant
also argues that the service of summons was improper. However, on August 17,
2022, Plaintiff filed an application and order to serve summons by posting for
unlawful detainer. Further, Code of Civil Procure section 418.10, subdivision
(e)(3), provides: “Failure to make a motion under this section at the time of
filing a demurrer or motion to strike constitutes a waiver of the issues of
lack of personal jurisdiction, inadequacy of process, inadequacy of service of
process, inconvenient forum, and delay in prosecution.” Defendant has not filed
a motion to quash with his demurrer.
Failure
to State a Claim
Defendant argues
that the complaint fails to state a claim because the 3-day notice was
improperly served, and the City of San Marino’s eviction moratorium bars this
present suit.
Compliance
with 3-Day Notice
The next
issue is whether Defendant’s argument that Plaintiff failed to comply with the
3-day notice provides sufficient grounds to sustain the demurrer.
“The basic elements
of unlawful detainer for nonpayment of rent contained in Code of Civil Procedure section 1161, subdivision (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 three-day 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.)
“Unlawful
detainer is a summary proceeding to determine the right to possession of real
property. Generally, in order to take advantage of this summary remedy, the landlord
must demonstrate strict compliance with the statutory notice requirements
contained in section 1161 et seq., including
providing the tenant with three days' written notice to pay rent or quit the
premises. The notice to quit must be served personally or, if personal service
is not possible, by substituted service.” (Culver Center Partners East #1,
L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744, 749.)
Here, Defendant’s assertion that Plaintiff improperly served the 3-day
notice provides insufficient grounds to sustain his demurrer. Although the
Court recognizes that strict compliance is necessary, at the demurrer stage,
only the pleadings are tested. Plaintiff used a Judicial Council form complaint
and checked the boxes that indicated that the three-day notice was served under
one of the applicable means. Further, Defendant seeks to establish that service
was improper using his declaration, which the Court declines to consider as
outside evidence not properly considered during the demurrer stage.
City of San Marino Eviction Moratorium
Defendant also asserts that this demurrer is proper due to the City of
San Marino Eviction Moratorium. However, the Eviction Moratorium is not
properly before this Court for the present demurrer. This moratorium may become relevant in a future
motion but at this point the Court declines to consider the eviction moratorium
at this stage of the proceedings.
Motion to Strike
Defendant also moves to strike various portions of Plaintiff’s complaint,
which was filed on a Judicial Council form. Defendant essentially disputes the
allegations underlying Plaintiff’s claim. Defendant’s argument that Plaintiff’s
complaint should be stricken because he disputes the underlying facts is
rejected.
Defendant’s motion to strike is denied.
CONCLUSION
Defendant’s
demurrer is overruled.
Defendant’s
motion to strike is denied.
Defendant
is ordered to file an Answer within 5 days of notice of this ruling.
Moving
Party to give notice.
Dated: August 29,
2022 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an email to the court
indicating their
intention to submit.
Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org