TENTATIVE RULING

Defendants Samuel Wrobel and Deborah Wrobel’s Demurrer to the Complaint of Behzad Pourebrahim, Roya Pourebrahim is OVERRULED.

Defendants Samuel Wrobel and Deborah Wrobel shall file and serve an answer to the Complaint within five (5) days of entry of this order. (Code Civ. Proc., § 1167.3.)

Defendants Samuel Wrobel and Deborah Wrobel 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.)

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 Samuel Wrobel and Deborah Wrobel (“Defendants”) demurs to Plaintiffs Behzad Pourebrahim and Roya Pourebrahim (“Plaintiffs”)’s complaint on the ground that the 3-Day Notice to Pay Rent or Quit supporting the complaint is improper. Defendants state that “the parties are incorrect,” but the notice attached to the complaint names both Defendants. (Compl. ¶ 9(e), Ex. 2.) Defendants also contend that “the three-day notice attached to the Complaint simply ordered me to vacate, without giving me an alternative of stopping any legal matters pertaining to my case.” (Mem. of P. & A., p. 2, ll. 6-8.) To the contrary, the notice states that Defendants failed to pay $33,000 in rent from October 1, 2023 to December 31, 2023, and that Defendants were to pay that amount of rent in full or quit the premises and deliver up possession or the landlord would institute unlawful detainer proceedings. (Compl. ¶ 9(e), Ex. 2.) It is clear that Defendants were allowed to pay the amount of rent due as an alternative to vacating the premises or becoming a party to unlawful detainer proceedings.

“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, Plaintiffs have properly pled that Defendants are in possession of the 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, Plaintiffs has properly pled a claim for unlawful detainer. Accordingly, Defendants Samuel Wrobel and Deborah Wrobel’s Demurrer to the Complaint of Behzad Pourebrahim, Roya Pourebrahim is OVERRULED. Defendants Samuel Wrobel and Deborah Wrobel shall file and serve an answer to the Complaint within five (5) days of entry of this order. (Code Civ. Proc., § 1167.3.)