Judge: John J. Kralik, Case: 22BBCV001041, Date: 2023-02-15 Tentative Ruling

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Case Number: 22BBCV001041    Hearing Date: February 15, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations of Case No. 22BBCV01041

On November 21, 2022, Plaintiff PNM Properties, LLC (“Plaintiff”) filed an unlawful detainer complaint against Defendants Arthur Semerdjian, individually and dba Art’s Trust Stop; Super Natural, Inc.; ATS Trust Stop, LLC; and Aram Semerdjian aka Eric Semerdjian.    

The property at issue is located at 9250 Tujunga Avenue, Sun Valley, California 91352. 

Plaintiff alleges that it entered into a written 5-year lease agreement with Arthur Semerdjian on June 15, 2005.  Plaintiff alleges that it served on Arthur Semerdjian a 3-day notice to pay rent or quit on November 18, 2022.  Plaintiff seeks possession of the property, costs incurred in this proceeding, past due rent of $174,240.00, reasonable attorney’s fees, forfeiture of the agreement, and damages in the daily rate of $1,452.00 from December 1, 2022. 

B.     Motions on Calendar

On December 16, 2022, Defendant ATS Truck Stop, LLC (“ATS”) filed a motion to consolidate for all purposes LASC Case Nos. 22BBCV00634, 22BBCV01041, and 22BBCV01042.  On February 1, 2023, Plaintiff filed an opposition brief. On February 7, 2023, ATS, Super Natural, Inc., and Aram Semerdjian filed a reply brief.

On December 5, 2022, Aram Semerdjian aka Eric Semerdjian (“Aram Semerdjian”) filed a demurrer to the complaint, arguing that it is uncertain and does not state sufficient facts to constitute a cause of action against him.  On January 30, 2023, Plaintiff filed an opposition brief.  On February 3, 2023, Aram Semerdjian filed a consolidated reply brief. On February 6, 2023, Defendant Arthur Semerdjian filed a joinder to the demurrer.

DISCUSSION RE MOTION TO CONSOLIDATE

ATS moves to consolidate cases: (1) 22BBCV01041 (PNM Properties, LLC v. Semerdjian et al., filed on November 21, 2022); (2) 22BBCV01042 (PNM Properties, LLC v. Semerdjian et al., filed on November 21, 2022); and (3) 22BBCV00634 (ATS Truck Stop, LLC v. PNM Properties, LLC (filed on September 2, 2022), These three cases are currently assigned to Department B of the Burbank Courthouse. 

As stated in the Court’s order regarding ATS’s motion to consolidate in the earlier filed case (Case No. 22BBCV00634 re ATS Truck Stop, LLC v. PNM Properties, LLC), the Court grants the motion to consolidate the three cases.  Case No. 22BBCV00634 has been deemed the lead case in this consolidated matter. As such, ATS’s motion filed in Case No. 22BBCV01041 is moot.

DISCUSSION RE DEMURRER

A.    Unlawful Detainers

“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.)  CCP § 1161(2) states that the 3-days’ notice must be “in writing, requiring its payment, stating the amount that is due, the name, telephone number, and address of the person to whom the rent payment shall be made” or method of payment if payment is to be made personally, “or possession of the property.”

“Under California statutory law a tenant is entitled to a 3-day notice to pay rent or quit which may be enforced by summary legal proceedings (Code Civ. Proc., § 1161) but this notice is valid and enforceable only if the lessor strictly complies with the specifically described notice conditions. (Code Civ. Proc., § 1162.)”  (DHI Cherry Glen Associates, L.P. v. Gutierrez (2019) 46 Cal.App.5th Supp. 1, 9.)  CCP § 1161(2) requires that the notice for a commercial property state “the amount that is due.”  It does not a require a specific breakdown of calculations.  (See CCP § 1161.1(a), (e) [stating that the notice for commercial properties provide a reasonable estimate of rent due].) 

B.     Discussion of Merits

            Aram Semerdjian demurs to the unlawful detainer complaint on the grounds that it is uncertain and fails to state sufficient facts to constitute a cause of action for unlawful detainer against him.  Aram Semerdjian argues that the proof of service of the 3-day notice attached to the complaint does not state what the notice was for, and the 3-day notice itself was not attached to the complaint such that he cannot ascertain the basis for the unlawful detainer or determine how to calculate unpaid rent.  He also argues that the complaint alleges unpaid rent in the sum of $174,240 but does not allege how it was calculated. 

The complaint only contains a copy of the proof of service of the Three Day Notice, which was effectuated by a registered California process server.  However, the complaint does not attach a copy of the Three Day Notice itself.  As pointed out by Aram Semerdjian, the proof of service does not identify what the nature of the Three Day Notice was (i.e., to pay rent or quit, to perform covenants or quit, to quit under Civil Code, § 1946.2(c), solely to quit the premises, etc.).  Thus, the complaint fails to adequately show that the 3-day notice was proper and satisfied the conditions of CCP § 1161 et seq.

Aram Semerdjian also argues that the complaint fails to allege how the unpaid rent was calculated.  CCP § 1161(2) requires that the notice state “the amount that is due.”  It does not a require a specific breakdown as argued by Defendant.  (See CCP § 1161.1(a), (e) [stating that the notice for commercial properties provide a reasonable estimate of rent due].) Nevertheless, because the complaint does not include a copy of the Three Day Notice, the Court and Defendants cannot ascertain whether the rent demanded by Plaintiff was an estimate pursuant to CCP § 1161.1.  (See Levitz Furniture Co. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4th 1035, 1038.)  As such, the demurrer on the basis of uncertainty is sustained with leave to amend.

Thus, the demurrer to the unlawful detainer complaint in Case No. 22BBCV01041 is sustained with leave to amend.

CONCLUSION AND ORDER

            Defendant ATS Truck Stop, LLC’s motion to consolidate filed in Case No. 22BBCV01041 is taken off-calendar as moot, in light of the Court’s ruling on ATS Truck Stop, LLC’s motion to consolidate filed in Case No. 22BBCV00634, the earlier filed action.

The demurrer of Aram Semerdjian (aka Eric Semerdjian) to the unlawful detainer complaint (filed in Case No. 22BBCV01041) is sustained with 20 days leave to amend.  The demurrers of Defendants ATS Trust Stop, LLC and Super Natural, Inc. were sustained on February 10, 2023, but the Court stayed the time for leave to amend until this hearing date.  The three demurrers of Defendants ATS Trust Stop, LLC, Super Natural, Inc., and Aram Semerdjian (aka Eric Semerdjian) to the complaint are sustained with 20 days leave to amend from this order date.Defendants shall provide notice of this order.