Judge: Margaret L. Oldendorf, Case: 23PDUD03897, Date: 2023-12-15 Tentative Ruling

Case Number: 23PDUD03897    Hearing Date: December 15, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This is an unlawful detainer action with an unusual issue. Plaintiff Riderwood USA Inc. (Riderwood) alleges that Defendant NKM Capital Group LLC (NKM) failed to mitigate noxious odors for the commercial premises at 400 South Baldwin Ave., Space 9015, Arcadia, CA 91007 (Subject Property). Defendant NKM operates a food stand at the Subject Property, Santa Anita Mall, selling fries, chicken, and drinks. Riderwood served a Three-Day Notice to Surrender Possession on October 16, 2023.

          Defendant NKM Capital Group filed the instant demurrer and motion to strike on November 20, 2023. Plaintiff Riderwood filed an opposition to the Motion to Strike on November 22, 2023. NKM filed replies in support of the demurrer and motion to strike on December 8, 2023.  For the reasons that follow, the demurrer is overruled in part, but sustained on one procedural issue. The motion to strike is denied.

II. DEMURRER

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).)

B. Law Governing Demurrers

Code Civ. Proc. Section 430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. (CCP § 430.10(e).) A demurrer tests the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) 

Code Civ. Proc. Section 430.10(f) provides for a demurrer where a pleading is uncertain. (CCP § 430.10(f).) 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).) 

          C. Analysis

i. The demurrer is overruled as to CCP 430.10(e)

          NKM demurs to the sole cause of action against it on grounds that the Complaint (1) fails to state facts sufficient for a cause of action and (2) the pleading is uncertain.  

          NKM urges that the Complaint for unlawful detainer fails to state facts sufficient to state a cause of action against it. Specifically, NKM urges that the description of the bad odor is insufficient.  It argues that Riderwood has an obligation to provide a more detailed description of the odor or describe the source of the order. (Demurrer, p. 5: 12-16.) This argument is unpersuasive. The Court directs NKM to  ¶¶ 9 and 10 of the Complaint where the odor is described as “offensive” and “foul and terrible”. NKM has failed to cite any case law or statutory authority to support its claim that a more detailed description of the odor is required.

Secondly, NKM urges that ordinary business operations under its lease may cause odor, and therefore, any alleged odor is not a breach. (Demurrer, p. 5: 17.) The Court notes that the lease provides that Defendant NKM is in the business of selling various food items. To the extent that odors are a natural by-product of the preparation of the various fried foods NKM sells, the Court does not consider this as an appropriate argument on demurrer.

          NKM then urges it complied with the lease term that necessitated installation of a ductless ventilation system, and thus the cause of action for unlawful detainer should be time-barred. (Demurrer, p. 6: 1-8.) NKM signed the lease in 2015. The statute of limitations for breach of a written contract is 4 years. (CCP § 337.) To the extent that NKM is urging that this is the applicable statute of limitations for this action, the day when the lease started is irrelevant. The fact that NKM did install the ventilation system is irrelevant. The statute of limitations begins to run after the breach, which in this case is the odor. Unless NKM is alleging that the odor started at the beginning of their tenancy in 2015, this argument has no merit as stated.

          NKM then urges that the demurrer should be sustained as the Complaint failed to state facts regarding the landlord’s compliance with its obligations under the lease upon default. (Demurrer, p. 6: 9-10.) NKM’s argument is insufficient in this regard.  According to CCP Section 1166, unlawful detainer complaints require a verification, allegations of the facts on which plaintiff seeks to recover, and a description of the premises. (CCP § 1166(a).) A statement of landlord compliance with lease provisions, while it might possibly be a basis for an affirmative defense, is not required.

          Lastly, NKM urges that the demurrer must be sustained as the complaint is not properly verified. (Demurrer, p. 7: 3.) Per CCP Section 1166(a), unlawful detainer complaints must be verified. (CCP § 1166(a).) According to CCP Section 446(a), if a pleading is verified by a non-party, the verifying individual shall submit an affidavit setting forth why the verification was not by one of the parties. (CCP § 446(a).) Here, the complaint is verified by Donna Guerrero, the Senior General Manager for Avison Young, Plaintiff’s real estate agent. She states that she “oversees the day-to-day operations of  the Premises and has personal knowledge of the defendant’s default. Plaintiff does not have such knowledge itself, thus I am verifying this complaint.” The Court finds the affidavit sufficiently complies with CCP Sections 1166(a) and 446(a).

          ii. The demurrer is overruled as to CCP 430.10(f)

Additionally, NKM urges that the Complaint is uncertain as Plaintiff does not state exactly what the offending odor is. (Demurrer, p.5: 10-12.) However, demurrers for uncertainty are disfavored and only sustained when the pleading is so uncertain that defendant cannot respond. (A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) The Court declines to rule that a generalized description of an odor (e.g., “foul and terrible”) meets this high threshold. Accordingly, the demurrer is not sustained on basis of uncertainty.

          iii. No Proof of Service of the 3-Day Notice

The Court does note, however, that the Complaint does not include a proof of service of the 3-Day Notice to Quit the Premises. On this basis (and this basis alone), Plaintiff is granted 5 days’ leave to amend the complaint. (CCP § 1166(a)(5) and (d)(2).)

III.     MOTION TO STRIKE

          A. Legal Standard

          Code Civ. Proc. Section 436 provides: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out 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.” (CCP § 436.)

          B. The Motion to Strike is Denied

Defendant NKM moves to strike the entire complaint on the grounds that the complaint is not properly verified. (Motion to Strike, p. 3: 15-16.) Per CCP Section 1166(a), unlawful detainer complaints must be verified. (CCP § 1166(a).) Per CCP Section 446(a), if a pleading is verified by a non-party, the verifying individual shall submit an affidavit setting forth why the verification was not by one of the parties. (CCP § 446(a).)

 As noted above, the Court concludes that Ms. Guerrero’s verification is adequate.   The motion to strike is therefore denied.

IV.     CONCLUSION AND ORDER

           The demurrer is overruled in part. The motion to strike is denied.

          Riderwood is given 5 days to amend the complaint, to include a proof of service of the 3-Day Notice to Vacate the Premises.

NKM is ordered to give notice of this ruling.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT