Judge: Margaret L. Oldendorf, Case: 23PDUD03585, Date: 2023-11-02 Tentative Ruling

Case Number: 23PDUD03585    Hearing Date: November 2, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This case is an unlawful detainer action. Plaintiff Harlan Johnson (Johnson) alleges that Defendant Barri Whittaker (Whittaker) failed to pay her monthly rent of $1,750.00,  and has not left the premises.

Johnson filed this action on October 11, 2023. The proof of service attached to the complaint indicates that defendant was served with a 3 Day Notice to Pay Rent or Quit by posting and mailing on September 9, 2023. (Complaint p. 9.) Proof of service of the complaint was filed October 25, 2023, indicating defendant was served with the complaint by electronic service, but the date of service was left blank. (10/25/23 Proof of Service.) Whittaker responded on October 20, 2023, by filing the present demurrer.

          In her demurrer, Whittaker alleges that the complaint (1) fails to state a cause of action and (2) alleges insufficient facts so as to be uncertain.

          Due to the reasons that follow, the demurrer is sustained.

II.       LEGAL STANDARD

A. Law Governing Unlawful Detainers  

An unlawful detainer action can be filed at any time while the defendant is in actual possession of the property. Unlawful detainer actions are summary proceedings. (CCP § 1161.) The timeline for pretrial proceedings is short. Defendants have five days to respond to a pleading, including by demurrer. (CCP § 1167.)  

Pleading requirements for unlawful detainers are contained in CCP section 1166. The requirements include verification, allegation of the facts on which plaintiff seeks to recover, and a description of the premises. A complaint grounded in CCP section 1161(2) (non-payment of rent) must plead the amount of rent in default. (CCP § 1166(a)(4).) The pleading must also allege the method used to serve notice on the defendant; this requirement may be satisfied by using the Judicial Council form or by attaching proof of service of the notice. (CCP § 1166(a)(5).)

If the notice demands payment of “COVID-19 recovery period rental debt” served under CCP section 1161(2) and is served before April 1, 2022, there are additional requirements. (CCP § 1179.10(a).) If the notice is served between April 1, 2022 and July 1, 2022, there are additional requirements. (CCP § 1197.10(b).) COVID-19 recovery period rental debt is defined as rental debt that came due between October 1, 2021 and March 1, 2022. (CCP § 1179.09(b).)

B. Law Governing Demurrers 

A general demurrer lies where a complaint fails to state a cause of action. (CCP § 430.10(e).) A demurrer challenges defects appearing on the face of the complaint or in matters as to which judicial notice may be taken. (CCP § 430.30.) A demurrer tests the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247.) Allegations need not be accepted as true if they are contradicted by judicially noticeable facts. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474.) Unambiguous facts appearing in exhibits attached to the complaint, such as a three-day notice, are judicially noticeable, and are given precedence over inconsistent allegations in the complaint. (See, e.g., Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1626-1627; Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.)

Code Civ. Proc. Section 430.10(f) provides for a demurrer where a pleading is uncertain. Demurrers for uncertainty are disfavored, and are only sustained where a pleading is so incomprehensible a defendant cannot reasonably respond. (A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695; Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)

The requirement that a party must meet and confer prior to filing a demurrer does not apply to unlawful detainer proceedings. (CCP § 430.41(d).) 

III.     ANALYSIS

A. Failure to State a Cause of Action

On demurrer, Whittaker alleges that the complaint fails to state a cause of action. (Demurrer, p.8: 8-9.) A cause of action for unlawful detainer requires: (1) a description of the premises, (2) a verification and (3) allegation of facts on which the plaintiff seeks to recover. (CCP § 1166.) Here, the Complaint contains all three elements. (Complaint, p. 1, item 3a; p.5; p.7.) Secondly, as the 3-Day Notice to Pay Rent or Quit was served September 9, 2023, the additional requirements under the COVID-19 Rental Housing Recovery Act do not apply. (CCP § 1179.10.)

However, the Complaint alleges two different amounts in past due rent. (Complaint p.3, item 12; Exh. 1, see CCP § 1166(a)(4).) Per Dodd v. Citizens Bank of Costa Mesa, unambiguous facts appearing in the exhibits attached to the complaint take precedence over inconsistent allegations in the complaint. (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1626-1627.) As such, the amount of past due rent in this action appears to be $28,000.00, per the 3 Day Notice. (Complaint, Exh. 1.)

 In addition, a 3 Day Notice to Pay Rent or Quit must be served within one year after the rent is due; a notice demanding more than one year’s rent is defective. (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697.) If the landlord waits more than a year to sue for the unpaid rent, the landlord is limited to an ordinary breach of contract action and cannot recover the property, as he could in an unlawful detainer action. (Cal-American Income Property Fund IV v. Ho (1984) 161 Cal.App.3d 583, 585.)

Whittaker urges that the operative complaint does not comply with the pleading requirements. Specifically, Whittaker provides: “the alleged rental default is uncertain due to the discrepancies in the amounts requested in the Complaint and in the 3-Day Notice. — February 1, 2020 — occurred more than one year prior to the filing of the instant Complaint — filed on April 13, 2022.” (Demurrer, p.9: 24-27.) However, the Complaint was filed October 11, 2023. The 3-Day Notice provides that the action is for unpaid rent as to the periods of February 2022-January 2023, and March 2023-August 2023. (Complaint, Exh. 1.) Whittaker further alleges that this action is untimely as to the alleged rental default from February 2022-October 2022. (Demurrer, p. 6:12-13.) This argument is well-taken. (Cal-American Income Property Fund IV v. Ho (1984) 161 Cal.App.3d 583, 585.) Past due rental amounts as to February 2022-October 2022 cannot be pursued in this unlawful detainer action, but may be pursued in a breach of contract action. As such, only past due rental amounts from October 2022 onward can be considered in this unlawful detainer action.  This amount is apparently $14,000.00. As the Complaint seeks amounts due more than year from when the complaint was filed, it is defective. (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697.)  For this reason, the Court sustains the demurrer.

Notwithstanding these defects in the Complaint, the Court provides the below additional analysis to the parties.  

B. Uncertainty of the Complaint

          Defendant Whittaker also alleges that the complaint is uncertain. (Demurrer, p.8: 8-9.) Specifically, she notes that “the instant unlawful detainer complaint [alleges] that Defendant owed $1,750 in rent at the time the 3-Day Notice was served (Complaint at p.3, ¶12), but the 3-Day Notice stated that Defendant owed $28,000 in rent at the time it was served.” (Demurrer, p.8: 1-3.) This argument is not necessarily dispositive. (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1626-1627.) The amount requested in the 3 Day Notice takes precedence. (Id.)

Secondly, Whittaker urges that the Complaint is uncertain because the Complaint states that the “address of the Premises as 11165 Sunshine Terrace, #1, Studio City, CA 91604 (Complaint at p.1, ¶3a), but the 3-Day Notice states the address of the Premises is 1 Sunshine Terrace, Studio City, CA 91604.” (Demurrer, p.8: 5-7.) However, demurrers for uncertainty are disfavored and only sustained where the pleading is so incomprehensible that the Defendant cannot possibly respond. (A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) Here, this is not the case, the addresses of the premises in the Complaint and in the 3-Day notice are substantially similar to one another and only missing part of the address, which Defendant has correctly surmised is her apartment. Defendant does not allege that the pleading is so incomprehensible that she cannot respond, indeed she did respond. Thus, the Court declines to sustain the demurrer for uncertainty as to the address discrepancy.

IV.     ORDER

          The demurrer is sustained with leave to amend. Plaintiff Harlan Johnson is granted 5 days to amend his Complaint.

          Notice of this ruling to be given by Whittaker.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT