TENTATIVE RULING

Defendant Katherine Roshodesh’s Demurrer to First Amended Complaint is OVERRULED.

Defendant Katherine Roshodesh’s Motion to Strike First Amended Complaint is DENIED.

Defendant Solomon Roshodesh’s Demurrer to First Amended Complaint is OVERRULED.

Defendant Solomon Roshodesh’s Motion to Strike First Amended Complaint is DENIED.

Defendants Katherine Roshodesh and Solomon Roshodesh shall file and serve an answer to the First Amended Complaint within five (5) days of entry of this order. (Code Civ. Proc., § 1167.3.)

Defendants Katherine Roshodesh and Solomon Roshodesh 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, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

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.)

Defendants Katherine Roshodesh and Solomon Roshodesh (“Defendants”) demur to Plaintiff Goldstar Investments, LLC (“Plaintiff”)’s First Amended Complaint (“FAC”) on the ground that the FAC is uncertain as to the current rent, the change of the terms of the agreement, and the lease term; Plaintiff has not complied with Civil Code section 1962 because there are no allegations that Defendants were given notice of a change in ownership; Plaintiff demanded and accepted rent after expiration of the fixed term; and Plaintiff caused Defendants to believe the lease had already been forfeited. Defendants also move to strike the FAC on the ground it is not verified.

Plaintiff alleges in the FAC that rent is at least $15,500, and there is a dispute among the parties as to the exact rent. (FAC ¶ 6d.) The Court finds this to be sufficiently certain, as the rent may be clarified during discovery, and Plaintiff can only succeed as to the proper amount of rent due; the terms of a lease modification can be clarified during discovery. Insofar as Defendants take issue with the terms of the lease, Plaintiff has sufficiently alleged a fixed-term lease underlying the claims here, so lack of clarity as to the terms does not doom Plaintiff’s unlawful detainer claim. (FAC ¶ 6a.) Further, while Defendants assert they are unaware as to certain facts regarding ownership, Plaintiff’s allegation that it is the owner of the property is sufficient to state a claim. (FAC ¶ 4.) The Court finds that Defendants have been made sufficiently aware of the nature of the claims against them.

Defendants also argue that Plaintiff has not complied with Civil Code section 1962 because there are no allegations that Defendants were given notice of a change in ownership. This is a matter better considered with the submission of evidence; there is no indication in the statute that compliance with the requirements must be stated in a complaint for unlawful detainer or that failure to state compliance makes a complaint subject to demurrer. Insofar as Defendants argue that the lease became a month-to-month lease, and Plaintiff demanded and accepted rent after expiration of the fixed term, this, too, is better considered with the submission of evidence, as this goes outside the four corners of the pleading. Defendants also argue that a prior unlawful detainer action caused them to believe that the lease was forfeited, but there is no legal authority supporting a finding that this belief would relieve Defendants of a duty to pay rent. As to verification, Code of Civil Procedure section 446 states that “[w]hen a corporation is a party, the verification may be made by an officer thereof”; there is no requirement that the verification must be made by an officer, as Defendants argue. The FAC is verified by an authorized agent of Plaintiff; this is sufficient at this juncture.

“The basic elements of unlawful detainer for nonpayment of rent contained in Code of Civil Procedure section 1161, subdivision (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.) Here, Plaintiff has properly pled that Defendants are in possession of premises and in default for nonpayment of rent, they were served with a three-day notice, and the default continued after expiration of the notice. Thus, Plaintiff has properly pled a claim for unlawful detainer. Accordingly, Defendant Katherine Roshodesh’s Demurrer to First Amended Complaint is OVERRULED, Defendant Katherine Roshodesh’s Motion to Strike First Amended Complaint is DENIED, Defendant Solomon Roshodesh’s Demurrer to First Amended Complaint is OVERRULED, and Defendant Solomon Roshodesh’s Motion to Strike First Amended Complaint is DENIED. Defendants Katherine Roshodesh and Solomon Roshodesh shall file and serve an answer to the First Amended Complaint within five (5) days of entry of this order. (Code Civ. Proc., § 1167.3.)