Judge: Lynette Gridiron Winston, Case: 23PSCV00835, Date: 2023-10-12 Tentative Ruling

Case Number: 23PSCV00835    Hearing Date: November 30, 2023    Dept: 6

CASE NAME:  Staccia Lee v. Thomas Harrison, et al.

Defendants Thomas Harrison and Thomas William Harrison’s Demurrer to Complaint 

TENTATIVE RULING

The Court OVERRULES the demurrer to the Complaint. Defendants must file an Answer to the Complaint within 20 days of the Court’s order. 

Plaintiff is ordered to give notice of the Court’s order and file proof of service of same within five days of the Court’s order.

BACKGROUND

This is an unlawful detainer action. On March 16, 2023, plaintiff Staccia Lee (Plaintiff) filed this action against defendants Thomas Harrison, Thomas William Harrison (collectively, Defendants), and Does 1 through 10 for unlawful detainer. 

On October 30, 2023, Defendants filed a demurrer to the Complaint. On November 17, 2023, Plaintiff filed an opposition. On November 27, 2023, Defendants filed their reply. 

LEGAL STANDARD

            A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)  

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)  

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])  

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)  

PRELIMINARY ISSUES

            Defendants note in their reply that Plaintiff’s opposition is untimely because it was not filed or served by November 15, 2023. The Court agrees. (See Code Civ. Proc., § 1005, subd. (b).) The Court also notes, however, that Defendants’ reply was not filed or served by November 21, 2023, which was the deadline for their reply. (See Id.) The proof of service attached to Plaintiff’s opposition indicates that it was mail served to Defendants on November 16, 2023, so it is unclear why it took Defendants until November 26, 2023 to file their reply. Either way, the Court exercises its discretion to still consider the opposition and reply, but admonishes both parties to comply with the requirements of the Code of Civil Procedure going forward. (See Cal. Rules of Court, rule 3.1300(d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) 

            The Court also notes that Defendants attached additional documents to their reply papers. Generally, new evidence is not permitted on reply unless it fills in gaps in the evidence created by the opposing party’s opposition and is not raising new substantive issues for the first time; otherwise, a further hearing would be required to permit the opposing party to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Further, the Court does not consider exhibits provided by the moving party in considering a demurrer. Moreover, the documents attached to the Reply – 15-Day Notices to Pay or Quit-- were attached as exhibits to the Complaint. Thus, the Court declines to consider Defendants’ exhibits. 

DISCUSSION

            Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), Defendants were required to meet and confer before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) Defendants provided no declaration indicating they attempted to meet and confer with Plaintiff. (See Id., § 430.41, subd. (a)(3).) However, Plaintiff did not raise this issue in the opposition. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) Nevertheless, the Court may not overrule the demurrer for failure to adequately meet and confer. (Code Civ. Proc., § 430.41, subd. (a)(4).) The Court will still consider the demurrer, but admonishes Defendants to comply with these requirements going forward. 

            Analysis

            The Court notes a few form issues with Defendants’ demurrer. First, Defendants have not actually provided a demurrer. Instead, they have provided a notice of demurrer and a memorandum of points and authorities in support of a demurrer. (See A. Demurrers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A [“The demurring party must file with the court, and serve on the other party, the following: • Demurrer; • Notice of Hearing (see ¶ 7:110 ff.); • Memorandum of Points and Authorities; [CRC 3.1112(a)] • Proof of service. [CCP § 1005(b); CRC 3.1300(c)].” [emphasis added].) The demurrer is separate from the notice and the memorandum of points and authorities. (See Id.) 

Second, Defendants’ demurrer fails to comply with Code of Civil Procedure section 430.60, which provides that, “[a] demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” (Code Civ. Proc., § 430.60) [emphasis added]. Defendants fail to specify each ground upon which they demur to Plaintiff’s Complaint. It is not enough that Defendants mention the grounds for the demurrer in the memorandum of points and authorities. (See Id.) 

Third, Defendants were required to specify in a separate paragraph each ground for demurrer to the Complaint and the causes of action contained therein. (Cal. Rules of Court, rule 3.1320, subd. (a) [“[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”]) Defendants’ demurrer fails to comply with these requirements.

            Nevertheless, the Court exercises its discretion to still consider Defendants’ demurrer, and admonishes them to comply with the requirements for a demurrer set forth in the Code of Civil Procedure and the California Rules of Court going forward. 

            Defendants contend the Complaint fails to state a cause of action for unlawful detainer on the grounds that the notice is defective because it demands rent for more than one year in violation of Code of Civil Procedure section 1161, subdivision (2). Defendants also contend the Complaint is subject to demurrer on the basis of uncertainty since there are conflicting amounts of rent allegedly at issue plus different termination notices. The Court agrees with Defendants regarding the excessive demand for rent, but disagrees on the basis of uncertainty. The Court also finds that Plaintiff has alleged an alternate, independent basis for unlawful detainer here beyond the issue of nonpayment of rent. 

To state a cause of action for unlawful detainer based on nonpayment of rent, the plaintiff must allege facts demonstrating, “’(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.’ [Citation.]” (Fitness Int'l, LLC v. KB Salt Lake III, LLC (2023) 95 Cal.App.5th 1032, 1045.) 

            Code of Civil Procedure section 1161, subdivision (2), provides that, “[t]he notice may be served at any time within one year after the rent becomes due.” (Code Civ. Proc., § 1161, subd. (2).) The 15-day notice for nonpayment of rent that Plaintiff served on Defendants seeks repayment of rent between February 2020 and May 2021, which exceeds the one-year limit of Code of Civil Procedure section 1161, subdivision (2). (Compl., Exs. 5-6.) This renders the 15-day notice defective. (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697-698; see also Foster v. Williams, 229 Cal.App.4th Supp. 9, 14, quoting Bevill, supra, at p. 697 [“A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action. [Citations.] Because of the summary nature of an unlawful detainer action, a notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements. [Citation.]”) 

However, a plaintiff may also state a cause of action for unlawful detainer based on no-fault just cause by alleging facts demonstrating compliance with Civil Code section 1946.2, subdivision (b)(2), which includes an owner’s withdrawal of real property from the rental market for occupation by the owner. (See Civ. Code § 1946.2, subd. (b)(2)(A)(i).) The Court finds the Complaint does clearly allege an independent basis for terminating the tenancy with Defendants. Plaintiff alleges having also served a 60-day notice of termination on Defendants on August 16, 2022 for no-fault just cause eviction under Civil Code section 1946.2, subdivision (b)(2)(A)(i), and that Defendants failed to vacate the subject property before the notice expired. (Compl., ¶ 9, Exs. 2-3.) While the Court agrees with Defendants that Plaintiff’s Complaint is not the paragon of pleading draftsmanship, the Court nevertheless finds it sufficiently alleges an alternate basis for unlawful detainer under Civil Code section 1946.2, subdivision (b)(2)(A)(i) to withstand a demurrer for uncertainty. (See Code Civ. Proc., § 452; Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 [allegations liberally construed in favor of plaintiff on demurrer].) 

To the extent the Complaint alleges the 60-day notice expired on August 16, 2022, the Complaint also contains a copy of the 60-day notice, which shows that it was served on August 16, 2022 and thus would have expired 60 days thereafter by operation of law. (Compl., Exs. 2-3; Code Civ. Proc., § 1946.1, subd. (b); see also Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 Cal.App.5th 1131, 1145-1146 [“While the ‘allegations [of a complaint] must be accepted as true for purposes of demurrer,’ the ‘facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence.’ ”]) Attachment 14 to the Complaint also states that the 60-day period expired on or about October 17, 2022 and that Defendants failed to vacate at the end of the 60 days. (Compl., Attachment 14.) Defendants acknowledge in their reply that the 60-day notice would have expired on October 15, 2023. (Reply, 3:26-27.) Defendants’ moving papers and reply papers otherwise fail to address any purported issues involving Plaintiff’s 60-day notice of termination. 

The Court finds that the Complaint alleges sufficient facts to state a cause of action for unlawful detainer based on the 60-day Notice to Quit. A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner, supra, 148 Cal.App.4th at p. 119; Kong, supra, 108 Cal.App.4th at p. 1046.)  

Based on the foregoing, the Court OVERRULES Defendants’ demurrer to the Complaint. 

CONCLUSION

The Court OVERRULES the demurrer to the Complaint. Defendants must file an Answer to the Complaint within 20 days of the Court’s order. 

Plaintiff is ordered to give notice of the Court’s order and file proof of service of same within five days of the Court’s order.