Judge: Lee W. Tsao, Case: 23NWCV02650, Date: 2023-09-26 Tentative Ruling

Case Number: 23NWCV02650    Hearing Date: October 24, 2023    Dept: C

WMB Group LLC v. Excellence Platinum Real Estate

CASE NO.: 23NWCV02650

HEARING:  10/24/23 

#9

TENTATIVE ORDER 

Defendant’s Demurrer is OVERRULED.

Background 

On August 1, 2019, Plaintiff WMB Group LLC (“Plaintiff”) and Defendant Excellence Platinum Real Estate (“Defendant”) entered into a written two-year lease agreement wherein which Defendant agreed to pay rent in the amount of $2,800.00 each month on the first of the month for the purpose of leasing the Premises. Upon the expiration of the two-year term, the tenancy became a month-to-month tenancy, and the latest rent increase raised the rent to $3,200.00 each month.

On August 10, 2023, Plaintiff caused to be served on Defendant a 3-day notice to pay rent or quit. Plaintiff alleges that Defendant failed to pay the past-due rent and failed to quit and deliver possession of the Premises by the expiration of the 3-day period.

On August 17, 2023, Plaintiff filed a Complaint against Defendant. On August 29, 2023, Plaintiff filed a FAC alleging unlawful detainer.

On September 15, 2023, Defendant filed a demurrer alleging that Plaintiff has failed to state a cause of action for unlawful detainer and that the notice is fatally defective.

On September 21, 2023, Plaintiff filed its Opposition.  On the same day, Defendant filed his Reply.  On September 25, 2023, Plaintiff filed a supplemental Opposition.

Analysis

Meet and Confer

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’s demur states that it includes a declaration of counsel. However, no such declaration has been attached.  Additionally, on the face of the demur, there includes no statement that Defendant has attempted to meet and confer with Plaintiff. Although, no meet and confer has occurred in the effort of judicial efficiency the Court will consider the demur on its 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, 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. (Cal. Civ. Proc. Code, § 1161(2).)

Defendant argues that the Notice failed to comply with CC 1161(2) because it does not state that the period to pay is “excluding Saturdays and Sundays and other judicial holidays” as required under the statute. Defendant argues that the missing clause failed to inform Defendant of its rights when it would be the last day to pay and thus, the Notice is fatally defective.

In Opposition, Plaintiff argues that it substantially complied with the CCP § 1161(2), because it includes all the information necessary to state a cause of action for unlawful detainer based on non-payment of rent. Plaintiff contends there is no requirement to include the language of “...excluding Saturdays and Sundays and other judicial holidays...” in the Notice itself.  Plaintiff points to the fact that the exclusion of Saturdays and Sundays and judicial holidays is necessary in computing the amount of time within which Defendant has to pay the past-due balance before the notice expires. Plaintiff argues that the calculation in the Notice shows that it considered the exclusion of Saturdays and Sundays when creating the three-day notice.

In Reply, Defendant again argues that the phrase “excludes Saturday, Sunday and Other Judicial Holidays” needs to be included in the notice.

The summary proceeding is an expedited proceeding in which the landlord must strictly adhere to the statutory requirements of the unlawful detainer. Tenant is entitled to three-days’ notice to pay rent or quit which may be enforced by summary legal proceedings, but such notice is valid and enforceable only if lessor strictly complies with specifically described notice conditions. (Lamey v. Masciotra (1969) 273 Cal.App.2d 709.) The rule that the three-day’s notice to quit or pay rent must contain the amount of rent which is due ensures that landlord will not be entitled to regain possession in an unlawful detainer action unless tenant has had an opportunity to pay the delinquent rent. (Bevill v. Zoura (1994) 27 Cal.App.4th 694.)

The Court determines that Defendant was given the statutorily authorized amount of time within which to pay the past-due balance.  The three-day notice to pay rent or quit was delivered on August 10, 2023. Since August 10, 2023, fell on a Thursday, Defendant had three (3) full days to pay: Friday August 11, Monday August 14, and Tuesday August 15, 2023 (excluding Saturdays and Sundays and judicial holidays).  The Notice clearly indicates the last day to pay rent in order to continue tenancy.  Moreover, the Notice includes all other required information, namely: 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 per CCP § 1161(2).

Based on the foregoing, the fact that the notice does not explicitly state “...excluding Saturdays and Sundays and other judicial holidays...” does not render the notice defective. Defendant was given the statutorily authorized amount of time within which to pay the past-due balance.

Conclusion

Defendant’s Demurrer is OVERRULED.