Judge: Malcolm Mackey, Case: 23STCV00299, Date: 2023-03-24 Tentative Ruling

Case Number: 23STCV00299    Hearing Date: March 24, 2023    Dept: 55

EIGHT ELEVEN W. SEVENTH ST., LLC v.  DARAKJIAN                23STCV00299

Hearing Date:  3/24/23,  Dept. 55.

#Add-on:   DEMURRER TO COMPLAINT.

Notice:  Okay

Opposition

MP:  Defendant.

RP:  Plaintiff.

Summary

Plaintiff filed an unlawful detainer complaint, on January 6, 2023, alleging that Defendant remained in possession of 811 W. 7th Street, First Floor, after expiration of a Commercial Office Building Lease agreement.

MP Positions

Moving party requests an order sustaining the demurrer to the Complaint, on grounds including the following:

·         Without a copy of any evidence of the property transfer to Plaintiff, the Complaint fails on the grounds it is ambiguous whether Plaintiff actually has standing to sue.  Plaintiff attached a lease agreement to the Complaint which names another Lessor than Plaintiff. Though Plaintiff asserts they are the successor in interest to the at-issue lease agreement, Plaintiff has failed to attach any evidence or written contractual agreement showing such as required by the original lease agreement (i.e., that all modifications to the lease agreement are in writing.)

·         The Complaint fails to allege that notice was given to vacate the property.  CCP   § 1161.

·         Within the time allowed to respond (here, five days from 3/9/23, the date of ruling on the motion to quash), defendant may file a demurrer, instead of an answer, on ground that the complaint fails to state a cause of action or is otherwise “facially” defective. CCP §§ 1170, 430.10.

RP Positions

Opposing party advocates overruling, for reasons including the following:

·         Plaintiff properly alleged all the necessary requirements for the maintenance of an unlawful detainer action based upon expiration of the commercial lease.

·         Capacity to sue is not uncertainly alleged.  Paragraph 4 of the Complaint alleges that Plaintiff is the owner of the Property. Looking further at the lease at issue in this action, it refers to the subsequent Landlord’s obligations if the interest in the Property is transferred (See ¶ 6 regarding transfer of security deposit; ¶ 30.f. stating that the “covenants and conditions of this Lease shall extend to and be binding upon Landlord…and their respective…successors”; ¶ 30.n. stating that “…the purchaser at such sale or any subsequent sale of the Premises shall be deemed without any further agreement between the parties or their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of the Landlord under this Lease.”)

·         No additional notice is required to terminate the tenancy of the Defendant.  Termination of a tenancy at the end of the agreed upon term results in a termination of the tenant’s possessory rights. California Civil Code § 1933(1) (“The hiring of a thing terminates…At the end of the term agreed upon”); Lee Chuck v. Quan Wo Chong & Co. (1891) 91 Cal. 593, 597; Ryland v. Appelbaum (1924) 70 Cal.App. 268. 

·         The time within which to respond to an Unlawful Detainer is five (5) days (CCP § 1167.3).

Tentative Ruling

The demurrer is overruled. Defendant is to answer in (5) days.

Complaint, Attachment 6, sufficiently alleges:

Plaintiff’s predecessor in interest, as landlord, and defendant Jacques Darakjian, as tenant, entered into a written lease agreement dated January 1, 2013 (the "Lease") for the commercial real property premises known and described as 811 W. 7th Street, First Floor Retail Space - “East Restaurant”, Los Angeles, CA 90017. Defendant also occupies a storage area in the basement of the building on the east wall near the basement entrance (approximately 198 square feet), for a term that ended on December 31, 2022. The Lease was not extended or renewed and Defendant failed to vacate the premises (including the storage area) by December 31, 2022, despite demand that he do so.

Complainants are not required to plead standing to sue.  Instead, where the lack of standing does not appear from the face of the complaint, it cannot be resolved by way of a demurrer.  Pillsbury v. Karmgard (1994) 22 Cal. App. 4th 743, 758.  Here, the Complaint alleges Plaintiff is a successor-in-interest of the prior landlord, which infers standing sue, and does not reveal lack of standing in order to support a demurrer on the issue.

Any notice requirement as to the end of a lease term for commercial tenants would not be a matter of the cited state law.  “[S]tate law does permit local entities to establish requirements for notice relating to the termination of commercial leases due to expiration of the lease term (Civ.C. § 1954.31).”    Cal. Prac. Guide Landlord-Tenant (The Rutter Group 2022)  § 7:208.3.  “The legislative scheme expressly authorizes local entities to enact by statute, charter or charter amendment, or ordinance a requirement for notice  relating to termination of a lease of commercial real property due to the expiration of its term. [Civ.C. § 1954.31]”  Ibid. at   § 5:409.

The demurrer was untimely filed on 3/15/23, after service of the Complaint, and more than 5 days even after the ruling on the motion to quash on 3/9/23.   “[D]efendants normally have only five days after service to respond to the unlawful detainer complaint. [CCP §§ 1167, 1167.3….”  Landlord-Tenant, supra, at   § 8:144.