Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV04391, Date: 2023-10-30 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV04391, Date: 2023-10-30 Tentative Ruling

Case Number: 23SMCV04391 Hearing Date: October 30, 2023 Dept: N

TENTATIVE RULING

Defendants 9017 CR DR, LLC’s Demurrer to Unlawful Detainer of L2 Realty Group, LLC is OVERRULED.

Defendant 9017 CR DR, LLC shall file and serve an answer to Plaintiff L2 Realty Group, LLC’s Complaint within five (5) days of entry of this order. (Code Civ. Proc., § 1167.3.)

Defendant 9017 CR DR, 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 9017 CR DR, LLC (“Defendant”) demurs to Plaintiff L2 Realty Group, LLC (“Plaintiff”)’s complaint on the ground that the complaint does not state facts sufficient to set forth the material terms of the underlying lease, nor does it include a copy of the lease agreement. At the outset, the Court notes that the demurrer is said to be filed by Defendants 9017 CR DR, LLC and Benjamin Nachimson, but the case docket does not show that Benjamin Nachimson was named as a party to this action or served with the summons and complaint, despite being named in the underlying notice. Thus, the Court considers the present demurrer only as to Defendant 9017 CR DR, LLC.

Code of Civil Procedure section 1166, subdivision (a)(2), provides that the unlawful detainer complaint must “[s]et forth the facts on which the plaintiff seeks to recover.” The Court finds that the complaint sufficiently sets forth the material terms of the lease agreement despite the failure to attach a copy of the agreement, as Plaintiff makes clear that the parties entered into a written month-to-month tenancy agreement on December 15, 2022, with rent of $15,500 payable monthly on the first of the month. (Compl. ¶ 6.) While Defendant argues that Plaintiff failed to allege whether another party is party to the rental agreement, the amount of the security deposit, the landlord’s duty to make repairs, or any other term or condition that would warrant termination of the agreement, there is no legal requirement to allege any such terms in an unlawful detainer complaint. Plaintiff was only required to allege the facts on which Plaintiff seeks to recover, and Plaintiff did so here. Accordingly, Defendants 9017 CR DR, LLC’s Demurrer to Unlawful Detainer of L2 Realty Group, LLC is OVERRULED. Defendant 9017 CR DR, LLC shall file and serve an answer to Plaintiff L2 Realty Group, LLC’s Complaint within five (5) days of entry of this order. (Code Civ. Proc., § 1167.3.)