Judge: Jon R. Takasugi, Case: 22STCV25357, Date: 2022-10-31 Tentative Ruling

Case Number: 22STCV25357    Hearing Date: October 31, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND. Accordingly, Defendant’s motion to strike is MOOT.

            On 8/5/2022, Plaintiff CHJK Investments, Inc. filed suit against Highland Express Cleaners alleging unlawful detainer.

            Now, Defendant demurs to Plaintiff’s Complaint. Defendant also moves to strike portions of Plaintiff’s Complaint.

Discussion

            Defendant argues that Plaintiff’s Complaint fails to state a claim because: (1) the Rent Notices were improperly served thereby rendering the notices invalid; (2) the Notice improperly demands rent.

            More specifically, as to the first issue, Defendant argues that the parties’ lease specifies that any notice given to Defendant (the Tenant) is to be sent to 5034 Wilshire Blvd., Los Angeles, California 90036 (i.e., the Premises). (See Exhibit 1, page 1, Section 1.13.) The lease further states:

All notices hereunder must be served by facsimile transmission, by personal delivery, or by certified or registered mail as aforesaid, postage prepaid, addressed to Tenant at the address specified in Section 1.13 and the Landlord at the address specified in Section 1.14, or at such other address as Landlord or Tenant may designate by written notice pursuant to this Section, except that notice to Tenant at the Premises shall in all events be proper notice.

(Exhibit 1, page 22, Section 24.7.)

However, Exhibit 3 to the Complaint, indicates that service was made to an address in Beverly Hills, not the Premises. (See Exh. 3.)

Defendant argues that “[a]pplicable and dispositive case law on the service of commercial notices very clearly specifies that service according to the lease and to the location specified in the lease is not only adequate, it is required and it does not matter if Defendant actually received the Notice” and cites Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744. (Demurrer, 4:20-24.)

As to the second issue, Defendant argues that the 30 Day Notice’s demand of rent of $166,258.29 is improper because “[a] notice to terminate a month to month tenancy does just that – it provides unequivocal notice of a termination. It does not require the payment of rent and it certainly does not require the payment of rent that is not yet due or that is over a year old.” (Demurrer, 6: 7-9.)

More specifically, Defendant argues that the 30 Day Notice’s demand for payment of roughly two years’ worth of rent is unreasonable because the unlawful detainer statutes are very clear that, at most, rent for only the past year may be sought. (See, e.g., Code of Civil Procedure § 1161(2) – “The notice may be served at any time within one year after the rent becomes due.”) In support, Defendant cited Levitz Furniture Co. of the Pacific, Inc. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4th 1035 where the Court held that commercial unlawful detainers do not automatically fail if the notice includes amounts over a year old but is otherwise reasonable. Defendant contends that the demand for two years worth of rent is unreasonable on its face.

In opposition, Plaintiff does not address the first issue raised by Defendant—i.e., that the Rent Notices were improperly served on the wrong address. For this reason, the Court sustains Defendant’s demurrer. Because this defect is procedural in nature, the defect could not be amended with leave. However, the ruling is without prejudice, and Plaintiff can refile once proper service has been effectuated.

As a final note, Plaintiff’s opposition clarified that it does not seek to recover unpaid rent or monetary damages. Rather, Plaintiff only seeks possession of the premises and forfeiture of the agreement. As a result, the Court does not consider whether or not a request for two years worth of rent in a commercial lease would be unreasonable under the unlawful detainer statutes.

Based on the foregoing, Defendant’s demurrer is sustained, without leave to amend. Accordingly, Defendant’s motion to strike is moot.

It is so ordered.

Dated:  October    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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