Judge: Jon R. Takasugi, Case: 24STCV05062, Date: 2024-04-24 Tentative Ruling

Case Number: 24STCV05062    Hearing Date: April 24, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s demurrer is SUSTAINED, WITH 5 DAYS LEAVE TO AMEND.

            On 2/29/2024, Plaintiff Vig Private Lending, Inc (Plaintiff) filed an unlawful detainer action against Defendant Ilan Kenig (Defendant).

            On 3/13/2024, Defendant demurred to Plaintiff’s Complaint.

Discussion

            Defendant argues that Plaintiff’s Complaint is invalid because it is not properly verified, and because Plaintiff does not have standing to pursue this action.

            After review, the Court agrees only in part.

            As to the first contention, Defendant argues that the Complaint is not properly verified because it is verified by the property manager, and Defendant, as a corporation, must provide verification from an officer. However, CCP section 446 expressly states “[w]hen a corporation is a party, the verification may be made any officer thereof.” (emphasis added.) The use of may, rather than shall, indicates that corporations are not limited exclusively to verification by officer. Moreover, CCP section 446 provides, “[w]hen the pleading is verified by the attorney, or any other person except one of the parties, he or she shall set forth in the affidavit the reasons why it is not made by one of the parties.” Here, the verification affidavit by the property manager Vladimir Valsky includes an explanation that he, rather than Plaintiff, verified the Complaint because as the property manager he is the most knowledgeable about the facts set forth in the Complaint. For this reason, the Court finds adequate explanation as to how and why Mr. Valsky is more knowledgeable of the relevant facts than Plaintiff. (See H.G. Bittleson Law & Collection Agency v. Howard (1916) 172 Cal. 357, 361.)

            As for the second contention, Defendant argues that Plaintiff has not alleged that it has standing because it only alleges that it is “the agent for owner of, and entitled to immediate possession of the real property commonly known as 1355 Berea Place, Pacific Palisades, CA 90272…” (See Complaint ¶1, emphasis added.)

            In opposition, Plaintiff argues that its allegation that it is “entitled to immediate possession of the real property commonly known as 1355 Berea Place, Pacific Palisades, CA 90272” is sufficient. (See Complaint ¶12) However, an allegation of standing and a right to possession, without any facts which could show standing, are conclusory and therefore insufficient. Here, Plaintiff alleges standing based on an assignment of the right of possession, but admittedly does not allege assignment. While Plaintiff contends that “the assignment need not be alleged as an element of the case,’ Plaintiff provides no legal support for this contention. (“This failure to cite pertinent legal authority is enough reason to reject the argument”); Akins v. State of California (1998) 61 Cal.App.4th 1, 50, 71 (contention waived by failure to cite legal authority). Moreover, while the Notice attached identifies “Owner/Agent: VIG Private Lending, Inc., as manager for Yarden Consulting, LLC,” the Court disagrees that this makes “abundantly clear who the owner is, and that the owner has assigned the right to possession of the property to the manager.” (Opp., 3: 12-13) The fact that Plaintiff’s Notice declares a right to possession does not, on its own, show a right to possession. Rather, that is conclusory and must be shown by supporting facts which could show such a right of possession.

Given that this defect could be easily remedied by adding facts which expressly allege assignment, the Court grants leave to amend.   

            Based on the foregoing, Defendant’s demurrer is sustained, with 5 days leave to amend.

It is so ordered.

Dated:  April    , 2024

   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.  For more information, please contact the court clerk at (213) 633-0517.