Judge: Lee W. Tsao, Case: 23NWCV01512, Date: 2023-10-24 Tentative Ruling
Case Number: 23NWCV01512 Hearing Date: October 24, 2023 Dept: C
Lucia Reyes v. Garrett Scalfani
CASE NO.: 23NWCV01512
HEARING: 10/24/23 @ 10:30 a.m.
#8
TENTATIVE ORDER
Defendant’s
Demurrer is OVERRULED.
Moving
party to give notice.
Defendant Garrett
Scalfani (“Defendant”) demurs generally on the grounds that it fails to state facts sufficient to constitute a cause of action.
Plaintiff Lucia Reyes (“Plaintiff”) alleges that Defendant owes
$55,000.00 in unpaid rent.
Defendant filed the
instant demur on June 8, 2023. No
opposition has been filed.
Analysis
A party filing a
demurrer “shall meet and confer in person or by telephone with the party who
filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) “The parties
shall meet and confer at least five days before the date the responsive
pleading is due. If the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the demurring party
shall be granted an automatic 30-day extension of time within which to file a
responsive pleading, by filing and serving, on or before the date on which a
demurrer would be due, a declaration stating under penalty of perjury that a
good faith attempt to meet and confer was made and explaining the reasons why
the parties could not meet and confer.” (Code Civ. Proc., section
430.41(a)(2).) A failure to meet and confer does not constitute grounds to
sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)
Defendant, in pro per, has not declared that he attempted
to meet and confer with Plaintiff. Although no meet and confer has occurred,
the Court will discuss the merits.
Legal Standard
Demurrer
A demurrer for sufficiency tests whether the complaint
states a cause of action. (Hahn v. Mirda
(2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read
the allegations liberally and in context. In a demurrer proceeding, the
defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th
968, 994.) “A demurrer tests the pleadings alone and not the evidence or
other extrinsic matters. Therefore, it lies only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§
430.30, 430.70.) At the pleading stage, a plaintiff need only allege
ultimate facts sufficient to apprise the defendant of the factual basis for the
claim against him. (Semole v.
Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does
not, however, admit contentions, deductions or conclusions of fact or law
alleged in the pleading, or the construction of instruments pleaded, or facts
impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226
Cal.App.2d 725, 732 (internal citations omitted).)
Discussion
A
tenant is guilty of unlawful detainer when he continues in possession of the
property, without the permission of the landlord, after default in the payment
of rent, and three days’ notice, in writing, requiring its payment. (Cal. Civ.
Proc. Code, § 1161(2).)
In his
demur, Defendant argues that it is his belief that Plaintiff lacks legal
capacity to sue under CCP § 430.10. Defendant states that the renters do not
have the right to rent the property and “have been scamming my $1,575.00 for
more than a year.” (Demurer Notice, ¶ 2.) However, Plaintiff identifies herself
as the owner of the premises. (Complaint, ¶ 4.)
Attached to the Complaint is a signed lease/rental agreement listing
Plaintiff as the landlord. (Complaint, Ex. A.) The court finds no merit in Defendant’s
argument that Plaintiff lacks the capacity to demand and sue for unpaid
rents. The court notes that although Defendant
makes a fraud argument, he does not submit the claim under penalty of perjury.
Defendant
also argues that Plaintiff’s Complaint fails to state the nature of the
agreement between the parties herein and has thereby failed to meet the
requirements of Code of Civil Procedure section 430.10(g). Attached to the
Complaint is a signed lease/rental agreement listing Plaintiff as the landlord.
(Compl., Ex. A.) The signed agreement states that rent is due every month in
the amount of $5,000. (Compl., Ex. A ¶ 1.) The Complaint lists nonpayment of
rent as the reason for the instant action. (Compl., ¶¶ 6,12,19.) Further, Defendant has not indicated that he
has relinquished possession of the property.
For the foregoing reasons, Defendant’s
Demurrer is OVERRULED.
Moving party to give notice.