Judge Kerry Bensinger, Case Number: 23STCV26321, Date: 2023-12-18 Tentative Ruling

This is an unlawful detainer action. On October 26, 2023, Plaintiff, SSR Miracle Mile LLC, filed a Judicial Council form complaint against Defendant, Emmanuel Dostaly, and unauthorized occupants, for the nonpayment of rent for the premises at 5550 Wilshire Blvd #340, Los Angeles, CA 90036. Defendant was served with a 3 Day Notice to Pay or 30 Day Notice to Quit on September 12, 2023 by posting a copy on the premises. At the time the notice to pay rent or quite was served, the amount of rent due was $21,870.

On November 17, 2023, Defendant filed a demurrer to the complaint. On the same day, Prejudgment Claimants, Denise Lane, Rober Ambuehl, and Orit Ambuehl, each filed demurrers to the complaint. Defendant and Prejudgment Claimants (hereafter, “Demurring parties”) are self-represented.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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 complainant to show the Court that a pleading can be amended successfully. (Ibid.)

The Court notes that the demurrers are identical. Accordingly, the Court addresses the demurrers altogether. Demurring Parties argue that Plaintiff did not give any notice before filing this unlawful detainer action. The argument lacks merit. A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascader, supra, 68 Cal.App.4th at p. 459.) The factual allegations of the complaint are accepted as true. (Mitchell, supra, 1 Cal.App.5th at p. 1007.) Here, Plaintiff alleges that it served a 3 day notice to pay and a 30 day notice to quit on September 12, 2023 by posting the notice on the premises. On demurrer, the Court must accept this factual allegation as true.

Moreover, the complaint sets forth a cause of action for unlawful detainer for failure to pay rent.

“A tenant of real property, for a term less than life, or the executor or administrator of the tenant's estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer:…2. When the tenant continues in possession…without the permission of the landlord… after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days’ notice…” (Code Civ. Proc., §1161, subd. (2).)

The elements of a claim for termination of a lease for failure to pay rent are (1) plaintiff owns the property; (2) plaintiff leased the property to defendant; (3) that under the lease, defendant was required to pay rent in a specific amount per period; (4) that plaintiff properly gave three days’ written notice to pay the rent or vacate the property; (5) that as of the date of the three day notice, as least the amount stated in the 3-day notice was due; (6) that defendant did not pay the amount stated in the notice within 3 days after service/receipt of the notice; and (7) that defendant is still occupying the property. (CACI No. 4302.)

Here, each element is pleaded in Plaintiff’s Judicial Council form complaint. Demurring parties fail to show there is a defect on the face of the complaint.

Defendant, Emmanuel Dostaly, is ordered to file and serve his responsive pleading within 10 days of this order.

Kerry Bensinger

Judge of the Superior Court