Judge: Layne H. Melzer, Case: 2022-01258544, Date: 2022-09-15 Tentative Ruling

Dft. Barbara A. Flores
Demurrer to Complaint

Defendant Barbara Flores’ demurrer to the unlawful detainer complaint of plaintiff Raymond Flores, Trustee of the Carmen V. Flores Revocable Trust, is sustained with 5 days leave to amend.

This is an unlawful detainer action.  Plaintiff used a form complaint, but Plaintiff did not check any of the boxes at paragraph 6 to allege the nature of the tenancy or the tenancy agreement. The complaint is verified by Plaintiff’s counsel, on the attestation that Plaintiff is absent from the county where counsel is located.

In opposition to the demurrer, Plaintiff explains that Defendant has been living in the home without paying rent and without any rental agreement.  The Trust owns the house and Defendant was allowed to live there prior to the death of Plaintiff and Defendant’s mother.

But this is not alleged in the complaint.

Essential elements for any unlawful detainer action include:  the plaintiff owns the property, under what terms or agreement the tenant occupied the property, and that the tenant now continues to occupy the property without permission nor right.  See CACI 4301, 4306.

Plaintiff has alleged that he is the owner but nothing about Defendant’s tenancy or the basis for its termination.

In his form complaint, Plaintiff did not check the boxes provided for allegations of tenancy, presumably because they do not fit this situation.  But Plaintiff did not allege anything independently, either.  Which leaves a critical blank spot in his allegations.

For this reason, the demurrer is sustained.

As to the verification, Code Civ. Proc. § 446 permits an attorney to verify a pleading on his client’s behalf when the client is not in the county where counsel has his office.  This is that Plaintiff’s counsel did here.  [ROA #2 at ELF p. 8.]  The verification is sufficient.