Judge John J. Kralik, Case 22BBCV01041 2023-02-10 Tentative Ruling

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.

There are 2 demurrers on calendar. On December 5, 2022, Defendants ATS Trust Stop, LLC (“ATS”) and Super Natural, Inc. (“SNI”) each filed demurrers to the complaint.

“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].)

Defendants ATS and SNI (collectively, “Defendants”) demur to the complaint on the grounds that it is uncertain and does not state sufficient facts to constitute a cause of action against them.[1]

Defendants argue that the complaint is uncertain because: (1) the proof of service of the 3-day notice attached as Exhibit 3 to the complaint merely states that it is a “3-Day Notice” but does not state what the notice was for; (2) Plaintiff did not attach a copy of the 3-Day Notice to the complaint for Defendants to ascertain the basis of the unlawful detainer or to determine how much alleged unpaid rent was calculated; and (3) the complaint alleges that the unpaid rent based on the 3-Day Notice was $174,240.00, but does not allege how this amount was calculated.

The complaint only includes a copy of the proof of service, which states that the document served was entitled “Three Day Notice.” (Compl., Ex. 3.) As pointed out by Defendants, 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.). Also, the complaint does not include a copy of the Three Day Notice at issue.

Defendants also argue 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.

Defendants argue that as a result of the uncertainty of the allegations of the complaint and lack of the Three Day Notice, the complaint fails to state sufficient facts to constitutes a cause of action for unlawful detainer against them. For the reasons stated above, the demurrer is sustained with leave to amend.

Defendants ATS Trust Stop, LLC and Super Natural, Inc. demurrers to the complaint are sustained with leave to amend.

The Court will stay the leave to amend until the February 15, 2023 hearing on Defendant Aram Semerdjian’s demurrer to the unlawful detainer complaint so that there is a single consistent date for leave to amend.

[1] The Court notes that Defendants include extrinsic facts in their demurrer papers. The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint. (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.)

Superior Court of California

County of Los Angeles

Department B