TENTATIVE RULING

On the Court’s own motion, the motion to strike Plaintiff Beverly Hills Properties, LLC’s request for past-due rent in the amount of $47,760.00, as alleged in paragraph 12 and 19(c) of the complaint, is DENIED. Defendant Lisa J. Gastineau’s Demurrer to Complaint for Unlawful Detainer is OVERRULED.  Defendant Lisa J. Gastineau shall file and serve an answer to Plaintiff Beverly Hills Properties, LLC’s within five (5) days. (Code Civ. Proc., § 1167.3.)

REASONING

Defendant Lisa J. Gastineau (“Defendant”) demurs to Plaintiff Beverly Hills Properties, LLC (“Plaintiff”)’s complaint on the ground that Plaintiff did not serve the 3-Day Notice to Pay Rent or Quit in the manner required by Code of Civil Procedure section 1162, subdivision (a)(3), such that the complaint does not state facts sufficient to constitute a cause of action against Defendant.

“[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.)

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.)

In the complaint, Plaintiff states that the 3-Day Notice to Pay Rent or Quit was served by posting a copy on the premises on July 12, 2023, giving a copy to a person found residing at the premises, and mailing a copy to Defendant at the premises because no person of suitable age or discretion could be found there. (Compl. ¶ 10.) The proof of service is attached to the complaint as Exhibit 3 and states that the notice was served by affixing a copy on the tenant’s residence door on July 12, 2023, and by mailing a copy to the tenant at the address described. (Compl., Ex. 3.) Defendant argues there is no separate proof of service showing that a first attempt was made to personally serve Defendant with the notice, and had an attempt been made, Plaintiff would have learned that Defendant was not in her apartment during most of July 2023 because she was on vacation, and Defendant only learned of the notice when she returned from her trip, and the time to respond to the notice had passed.

Insofar as Defendant makes representations about her presence at the property and her vacation during July 2023, this is outside the four corners of the pleading or any facts subject to judicial notice, such that these arguments are disregarded and may be considered only in the context of a motion or trial where evidence is accepted and considered. Defendant also argues that Plaintiff was required to file a proof of service showing attempts to personally serve Defendant before posting and mailing, the statute includes no such requirement.

Code of Civil Procedure section 1162, subdivision (a)(3), states that when a person of suitable age or discretion cannot be found at the residence, service of a notice may be served “by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated.” There is no requirement that reasonable diligence be exercised to personally serve the tenant before notice may be provided in this manner. (See Hozz v. Lewis (1989) 215 Cal.App.3d 314, 317 [“The courts have held that section 1162 does not require a showing of reasonable diligence in attempting personal service before utilizing the substituted service provisions”].) It is generally accepted that “[t]he ‘post and mail’ provision of [Code of Civil Procedure] section 1162, subdivision [(a)(3)] does require . . . that if the tenant cannot be located for personal service that the person making this substituted service first determine . . . ‘that a person of suitable age or discretion there cannot be found.’” (Highland Plastics, Inc. v. Enders (1980) 109 Cal.App.3d Supp. 1, 6.) However, Plaintiff has stated in its complaint that no person of suitable age or discretion could be found at the residence, which is sufficient for the purposes of demurrer. If Plaintiff made no attempt to find a person of suitable age or discretion before posting, this may be determined in the context of a proceeding where evidence is considered, i.e., a dispositive motion or at trial, so the trier of fact may consider who served the notice, the attempts made to find a person at the residence before posting, and whether the server’s statements are credible. At this juncture, Defendant’s demurrer on this basis must be overruled.

Further, the complaint otherwise states a claim for unlawful detainer based on nonpayment of rent. “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 Defendant is in possession of premises and in default for nonpayment of rent, she was served with a Notice to Pay Rent or Quit, and the default continued after expiration of the notice, thus stating a proper claim for unlawful detainer.   The Court notes that the amount sought in the complaint seeks an amount great than that in the 3-day notice to pay or quit.  As the Plaintiff may not seek more than the amount stated in the 3-day notice, Plaintiff may amend the complaint to conform to proof pertaining to the 3-day notice at time of trial.   Lisa J. Gastineau’s Demurrer to Complaint for Unlawful Detainer is OVERRULED. Upon receipt of the amended complaint, Defendant Lisa J. Gastineau shall file and serve an answer to Plaintiff Beverly Hills Properties, LLC’s First Amended Complaint within five (5) days. (Code Civ. Proc., § 1167.3.)