Judge Lee W. Tsao, Case Number: 24NWCV00424, Date: 2024-11-19 Tentative Ruling

Judge: Lee W. Tsao, Case: 24NWCV00424, Date: 2024-11-19 Tentative Ruling

Case Number: 24NWCV00424 Hearing Date: November 19, 2024 Dept: C

Hynes Packing Company Dba Koret Business Park -- Santa Fe Springs vs Jade Spec, LLC, et al.

Case No.: 24NWCV00424

Hearing Date: November 19, 2024 @ 9:30 a.m.

Tentative Ruling

Defendants’ Demurrer is SUSTAINED with leave to amend. The First Amended Complaint filed on November 7, 2024 is deemed to be the operative pleading. Defendants shall file and serve an answer or responsive pleading within 10 days.

Defendants to give notice.

On February 8, 2024, Plaintiff Hynes Packing Company Dba Koret Business Park -- Santa Fe Springs (“Plaintiff”) filed an unlawful detainer complaint against Defendants Jade Spec, LLC, Dylan Rodriguez, and Steve Weiss (“Defendants”).

Defendants demur to the Complaint on the grounds that it fails to state sufficient facts to constitute a cause of action.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

The Demurrer is Unopposed

Defendant filed the instant demurrer to Plaintiff’s Complaint on March 5, 2024. No opposition has been filed. However, on November 7, 2024, Plaintiff filed a First Amended Complaint (“FAC”). “¿A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (CCP § 472, subd. (a).) Here, Plaintiff is not granted leave to file a FAC in lieu of an opposition because Plaintiff did not file and serve the FAC on or before the due date for the opposition. The opposition was due on November 5, 2024, or nine court days before the hearing. (CCP § 1005, subd. (b).) When Plaintiff filed the FAC on November 7, 2024, it was already two days late. Thus, the Court will address the merits of the demurrer, which is unopposed.

Discussion

“[T]he basic elements of unlawful detainer for nonpayment of rent contained in CCP §1161(2) are: (1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed.” (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16.)

In the unlawful detainer context, “[a] valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action.” (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697.) “Because of the summary nature of an unlawful detainer action, a notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements.” (Ibid.) “[A] commercial landlord who invokes the summary procedures of unlawful detainer must strictly comply with the notice requirements of the statute under which he/she elects to proceed.” (WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.) “A judgment must be reversed when it is based on a three-day notice which lacks the information required by Code of Civil Procedure section 1161, subdivision (2).” (Foster v. Williams (2014) 229 Cal.App.4th Supp. 9, 14 (Foster).)

In support of the demurrer, Defendant argues that the three-day notice improperly seeks monies owed beyond the one-year period preceding the notice.

A notice that seeks rent in excess of the amount due is invalid and will not support an unlawful detainer action. (Levitz Furniture Co. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4^th 1035, 1038.) CCP § 1161(2) provides that “[the three-day notice of nonpayment of rent] may be served at any time within one year after the rent becomes due.” This provision “prevents a landlord's sitting on his or her rights, when rent is unpaid at some point during the life of a lease, then using long-overdue rent (but no recently overdue rent) to effect an eviction.” (Levitz Furniture Co. v. Wingtip Communications, Inc., supra, 86 Cal.App.4^th at 1040.) “If the landlord waits over a year to sue for unpaid rent, he or she is limited to collecting such rent in a standard breach of contract action, ‘which results only in a money judgment without restitution of the demised property.’” (Id. at 1038.)

Here, the three-day notice seeks past due rent from January 2022 through January 2024. Thus, the notice seeks rent beyond the one-year period preceding January 25, 2024, when the notice was served. Moreover, the amount stated in the notice is not clearly identified by the notice as an estimate. (CCP § 1161.1, subd. (a).) Under these circumstances, the notice seeks rent in excess of the amount due and is invalid. (Levitz, supra, at 1038.)

Accordingly, the Demurrer is SUSTAINED with leave to amend. The First Amended Complaint filed on November 7, 2024 is deemed to be the operative pleading. Defendants shall file and serve an answer or responsive pleading within 10 days.