TENTATIVE RULING

Defendant John Chickanis’ Motion to Strike Portions of and Causes of Action in Plaintiff’s Complaint, Demurrer is SUSTAINED with twenty (20) days leave to amend.

Plaintiff Laguna del Rey, LLC may amend its complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant John Chickanis 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).

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.)

Analysis

On December 19, 2023, this action was reclassified as an unlimited civil case. The minute order dated December 19, 2023, indicates that Defendant Gyozo Major was dismissed in the filing of the First Amended Complaint (“FAC”), but paragraph 9a of the FAC still references Gyozo Major as a defendant, although he is not named in the caption. The Court requires clarity in the pleading to indicate whether Gyozo Major is a defendant in this action.

Defendant John Chickanis (“Defendant”) demurs to the FAC on the ground that it contains a defect claiming an impossibility of service. In paragraph 10, Plaintiff states that a copy of the 3-day notice was posted on the premises on April 5, 2023, and it was given to a person at the residence because no person of suitable age or discretion could be found there. Defendant argues this latter statement is contradictory in itself. While this uncertainty is not fatal to the FAC, the Court requires amendment to the pleading for other reason discussed herein; thus, Plaintiff shall amend this statement in filing a Second Amended Complaint.

Defendant also argues that Plaintiff’s FAC contains a defect because it fails to reclassify the complaint from a limited civil to an unlimited civil case. In opposition, Plaintiff appears to contend that this matter should be a limited civil matter, but the FAC was filed as an unlimited civil matter. Plaintiff shall clarify the classification of this action in the Second Amended Complaint.  Oppo'n p..4 ln 11-14.

Notably, Defendant understands the FAC as including two causes of action, one for breach of the lease and one for nuisance. This is not made clear in the FAC. Should Plaintiff be asserting both causes of action in this manner, i.e., a common law claim for breach of contract and a common law claim for private nuisance, Plaintiff shall so clarify.

Defendant also argues that Plaintiff’s first cause of action for forfeiture is inconsistent with provisions of the lease because the lease does not provide for forfeiture of the lease based on such a claimed breach. Plaintiff argues it is “Ludacris” to require that a lease specify each rule that if breached would result in forfeiture (see Opp’n, p. 5, l. 6), presumably meaning that such a requirement is “ludicrous,” but the Court is not so convinced. Plaintiff argues that a catch-all provision allows it to evict for any reason it deems a breach of the contract, but this would still require breach of a certain term, which has not been clearly alleged by Plaintiff.

Defendant also makes reference to Plaintiff’s reinstatement of parking privileges as a basis for demurrer or motion to strike, but this goes beyond the pleading itself. As to whether there is a nuisance alleged, the FAC does not make clear there is a nuisance claim, but insofar as Plaintiff attempts to allege a private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”; (3) “the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263, citations, italics, brackets, and quotation marks omitted.) Plaintiff appears to allege that the mere presence of unauthorized occupants constitutes a nuisance, but this does not sufficiently allege a claim for nuisance. (See also Code Civ. Proc., § 1161(4).) The Court also does not read a claim for fraud as having been alleged, but again, the FAC requires clarity to indicate whether this is an unlawful detainer action or a common law civil action, and if it is the latter, the Court advises Plaintiff to avoid using the unlawful detainer form pleading.

Put simply, Defendant’s demurrer and motion to strike are confusing, but Plaintiff’s opposition does not provide the Court with any clarity as to Plaintiff’s claims beyond mere failure to comply with purported covenants, which are not sufficiently stated in the lease. Accordingly, Defendant John Chickanis’ Motion to Strike Portions of and Causes of Action in Plaintiff’s Complaint, Demurrer is SUSTAINED with twenty (20) days leave to amend. Plaintiff Laguna del Rey, LLC may amend its complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)