TENTATIVE RULING

Defendant BLANKSPACES, LLC’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED.

Defendant BLANKSPACES, LLC shall file and serve an answer to Plaintiff 1448 Second Street, LLC’s First Amended Complaint within five (5) days of entry of this order. (Code Civ. Proc., § 1167.3.)

Defendant BLANKSPACES, LLC to give notice. 

REASONING

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Defendant BLANKSPACES, LLC (“Defendant”) demurs to Plaintiff 1448 Second Street, LLC (“Plaintiff”)’s First Amended Complaint (“FAC”) on the ground that the FAC pleads that rent is a specific amount, and Plaintiff attaches a lease, but the Three-Day Notice to Pay Rent or Quit demands a different rental rate. Plaintiff opposes the motion on the ground that the leasehold charges under the lease are not just the base monthly rate but also include all monetary obligations due under the lease, including insurance charges.

Paragraph 1.5 of the lease attached to the complaint states as follows: “Base Rent: $22,500.00 per month (‘Base Rent’), payable on the First (1st) day of each month commencing See Addendum. (See also Paragraph 4).” (Compl. ¶ 4, Ex. 1, at ¶ 1.5, bolding omitted.) Paragraph 4.1 of the lease defines “Rent” as “[a]ll monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent (‘Rent’).” (Compl. ¶ 4, Ex. 1, at ¶ 4.1, bolding omitted.) Paragraph 54 of the Addendum provides as follows:

Base Rent is Twenty Two Thousand Five Hundred Dollars ($22,500.00) per month, payable on the first day of each month commencing on the Commencement Date, as adjusted below. . . . The monthly Base Rent for the Original Term shall be as follows, subject to the increase in Section 53 if the early possession period is extended:

 

Lease Years

Years 1-5

Years 6-10

Monthly Base Rent

$22,500.00 per month

$28,500.00 per month 

(Compl. ¶ 4, Ex. 1, at ¶ 54, bolding omitted.) Paragraph 8.1 of the lease states that “[l]essee shall pay for all insurance required under Paragraph 8 except to the extent of the cost attributable

to liability insurance carried by Lessor under Paragraph 8.2(b) in excess of $2,000,000 per occurrence,” and “[p]ayment shall be made by Lessee to Lessor within 10 days following receipt of an invoice.” (Compl. ¶ 4, Ex. 1, at ¶ 8.1)

The Notice to Pay Rent or Quit attached to the complaint seeks a total of $353,268, with the amount owed from February to April 2022 being $38,502 per month, and the amount owed from May to October 2022 being $39,627. (Compl. ¶ 9, Ex. 5.) Plaintiff contends that the notice seeks leasehold charges, which includes more than the base rent. Plaintiff also points to paragraph 55.E of the addendum to the lease, which states that the rent due for the option term is the determination of the fair market rent per rentable square foot after assessment. (Compl. ¶ 4, Ex. 1, at ¶ 55.E.) Plaintiff provides a letter dated November 20, 2020, where it was agreed that the base rent payable during the option term, based on these calculations, would be as follows: “Year 1 (5/1/21 to 4/30/22) 37,500.00 NNN per month [¶] Year 2 (5/1/22 to 4/30/23) $38,625.00 NNN per month [¶] Year 3 (5/1/23 to 4/30/24) $39,783.75 NNN per month [¶] Year 4 (5/1/24 to 4/30/25) $40,977.26 NNN per month [¶] Year 5 (5/1/25 to 4/30/26) $42,206.58 NNN per month.” (Compl. ¶ 7, Ex. 4.) Plaintiff alleges that Defendant exercised its option to extend the term of the lease, thereby triggering this new rent amount. (Compl. ¶ 7.) The base rent amount plus insurance, then, tends to reflect the amount stated in the notice, and Code of Civil Procedure 1161.1, subdivision (a), provides that in the case of commercial real property, the amount in the notice may be an estimate if so stated in the notice, and the notice here identifies the amounts as the “estimated leasehold charges.” (Compl. ¶ 9, Ex. 5.)

It follows that Plaintiff has stated a viable claim for unlawful detainer, as the rent amount is a reasonable estimate of the amount owed under the commercial lease. Accordingly, Defendant BLANKSPACES, LLC’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED. Defendant BLANKSPACES, LLC shall file and serve an answer to Plaintiff 1448 Second Street, LLC’s First Amended Complaint within five (5) days of entry of this order. (Code Civ. Proc., § 1167.3.)