Judge: Joseph Lipner, Case: 23STCV09705, Date: 2023-10-05 Tentative Ruling

Case Number: 23STCV09705    Hearing Date: October 5, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Mirna Martinez (“Defendant”) filed a demurrer to Plaintiff’s unlawful detainer complaint.

Defendant’s demurrer to the complaint is SUSTAINED with 20 days leave to amend.

Background

          On May 1, 2023, Plaintiff filed an unlawful detainer complaint against Defendants. The complaint arises from an alleged failure to pay rent. The complaint alleges that Defendants were served with a 3-Day Notice to Pay Rent or Quit (the “Notice”) and that Defendants failed to comply with the Notice. The Notice is attached as Exhibit 2 to the complaint. Proof of service as to the Notice is attached as Exhibit 3 to the complaint.

          On May 18, 2023, Defendant Mirna Martinez (“Defendant”) filed a demurer to the complaint. Defendant’s demurrer is made on the following grounds:  (1) the complaint is not verified; (2) Plaintiff failed to comply with proper legal procedure to open an unlawful detainer case due to a failure to comply with the amended Covid-19 Tenant Protections Resolution; and (3) Plaintiff failed to comply with proper legal procedure to open an unlawful detainer case due to a failure to file a copy of the notice terminating tenancy with the Los Angeles Housing Department pursuant to Los Angeles Municipal Code, Sections 151.09.C.9 and 165.05.B.5.

          In opposition to the demurrer, Plaintiff contends that: (1) Plaintiff properly pled their cause of action for unlawful detainer based on non-payment of rent; (2) a general demurrer will be overruled where the pleading, liberally construed, and accepted as true, states any viable claim for relief under any theory; and (3) in event that the Court is inclined to sustain the demurrer, Plaintiff requests leave to amend. No reply brief was filed.

Deficiencies in Defendant’s Demurrer

          Initially, the Court finds that Defendant has failed to provide reasoned argument with citations to authority to support a ground for the demurrer raised in the notice of motion.  Defendant contends that Plaintiff failed to comply with proper legal procedure to open an unlawful detainer case due to a failure to comply with the amended Covid-19 Tenant Protections Resolution; however, the memorandum of points and authorities in support of the demurrer neither sets forth a citation to legal authority on such point nor reasoned argument on such point and the Court finds that Defendant has waived such contention under Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.

Legal Standard

           In an unlawful detainer action, on or before the day fixed for his appearance, the defendant may appear and answer or demur.  (Code Civ. Proc. § 1170.) A demurrer tests the sufficiency of a complaint as a matter of law.”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.”  (Ibid.)  In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Accordingly, “[w]hether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.) A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. § 430.10(e).) Although Courts construe pleadings liberally, sufficient facts must be alleged to support the allegations plead to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

          Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). 

Discussion

Deficiencies in Defendant’s Demurrer

          Deficiencies in Defendant’s Demurrer

          With a single exception discussed in the section, Defendant has not supported any of the assertions in the demurrer.  It appears that the demurrer uses boilerplate argument that do not apply in a logical way to the allegations here. 

For example, Defendant’s first ground for demurrer state that “there is no lawfully verified complaint on file.”  (Demurrer at 3:6-9.)  However, contrary to this statement, the verification is attached to the complaint.

As to all the other issues raised by the demurrer with the exception of the Los Angeles Municipal Code, Defendant has failed to provide reasoned argument with citations to authority to support a ground for the demurrer raised in the notice of motion.  Defendant asserts that Plaintiff failed to comply with proper legal procedure to open an unlawful detainer case due to a failure to comply with the amended Covid-19 Tenant Protections Resolution; however, the memorandum of points and authorities in support of the demurrer neither sets forth a citation to legal authority on such point nor reasoned argument on such point and the Court finds that Defendant has waived such contentions (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority”].)

Applicability of the Los Angeles Municipal Code

Defendant contends that Plaintiff failed to comply with Los Angeles Municipal Code, Sections 151.09.C.9 and 165.05.B.5. Plaintiff’s opposition to the demurrer fails to address such argument.

Los Angeles Municipal Code, Section 151.09.C.9 provides that in an action to recover possession of a rental unit, the landlord shall serve on the tenant a written notice setting forth the reasons for the termination and “[a] copy of any written notice terminating a tenancy shall be filed with the Department within three business days of service on the tenant.” Los Angeles Municipal Code, Section 165.05.B.5 provides that in an action to recover possession of a rental unit, the landlord shall serve on the tenant a written notice setting forth the reasons for the termination and “[a] copy of any written notice terminating a tenancy shall be filed with the Department within three business days of service on the tenant.”

Here, the complaint alleges that Defendants rented the Premises and that the Premises are in the city limits of Los Angeles. The Los Angeles Municipal Code requires that a copy of a written notice to terminate tenancy be filed with the Department of Housing. Plaintiff’s opposition does not respond to the argument of Defendant that Plaintiff failed to comply with the Los Angeles Municipal Code and therefore the complaint is defective. The complaint does not allege compliance with the aforementioned Municipal Code sections.  By not addressing Defendant’s argument, Plaintiff has conceded the point.    

Defendant’s demurrer to the complaint is therefore SUSTAINED with 20 days leave to amend.

          Defendant is ordered to give notice.