Judge: Joseph Lipner, Case: 23SRCV15321, Date: 2023-08-31 Tentative Ruling

Case Number: 23SRCV15321    Hearing Date: August 31, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Christian Anthony Berry’s demurrer is OVERRULED.

          On June 30, 2023, Plaintiff Robert King Jr., as Trustee of the Lillian Hightower Trust (“Plaintiff”) filed this unlawful detainer action against Christian Anthony Berry (“Berry”) and Does 1-10, seeking past-due rent, reasonable attorney fees, forfeiture of the agreement, and damages at the fair market rate from June 1, 2023.

          On July 18, 2023, Berry filed a demurrer to the complaint pursuant to CCP § 1170 on the grounds that the complaint is fatally defective because Berry was not properly served with three-day notice to pay rent or quit. As such, Berry contends, Plaintiff lacks standing. Specifically, Berry contends the notice was defective because it ordered him to vacate the premises without giving him the alternative of stopping any legal matters pertaining to his case.

          On July 25, 2023, Plaintiff filed an opposition. Plaintiff contends that the demurrer should be overruled because the complaint easily satisfies the pleading requirements off unlawful detainer action: service of a valid notice to quit and non-compliance with the notice.

Legal Standard

          A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.) 

          A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered.  (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

          A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)  The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). 

          A demurrer can only be sustained when it disposes of an entire cause of action.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) 

Discussion

          A landlord may evict tenants if the tenant continues in possession of the property after defaulting on the agreed-upon rent.  (CCP §§ 1161(2) [notice to pay must state exact rent due and may be served on residential or commercial tenant].)  

          Under CCP § 1161(2), a tenant is guilty of unlawful detainer: 

“When he or she continues in possession, in person or by subtenant, without the permission of his or her landlord, or the successor in estate of his or her landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring its payment, stating the amount which is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure, or possession of the property, shall have been served upon him or her and if there is a subtenant in actual occupation of the premises, also upon the subtenant.”

          Consequently, the basic elements of unlawful detainer for nonpayment of rent contained in CCP 1161(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.) 

          Here, on February 24, 2016, Plaintiff and Berry entered into a written contract for a month-to-month tenancy at 1050 West Blvd., Los Angeles, CA 90019, County of Los Angeles (“the premises”). On May 10, 2023, Berry was served with notice to pay rent or quit by May 15, 2023. (Complaint, Ex. 2, (Three-Day Notice).) Service was made by posting a copy on the premises and mailing a copy to the premises because no person of suitable age and discretion was found at the premises. (Complaint, Ex. 3 (POS).) At the time service of notice to pay rent or quit was made, the amount of rent due was at least $22,800.00. (Complaint, Sec. 12.) The fair rental value of the premises is $76.27 per day. (Complaint, Sec. 13.)

          The court does not agree with Berry that the three-day notice was deficient. Accordingly, Berry’s demurrer is overruled.