Judge: Mark A. Young, Case: 22SMCV01063, Date: 2022-08-25 Tentative Ruling
Case Number: 22SMCV01063 Hearing Date: August 25, 2022 Dept: M
CASE NAME: Century City Mall LLC v. MKCCP
CASE NO.: 22SMCV01063
MOTION: Demurrer to the Complaint
HEARING DATE: 8/25/2022
BACKGROUND
This is an unlawful detainer action on a commercial lease entered into on April 8, 2021. Plaintiff operates the Westfield Century City Mall. Defendant MKCCP, dba Sestina, leased Space No. 2120 (the “Premises”). As of May 12, 2022, Defendant owed $71,755.28 under the Lease. On May 12, 2022, Plaintiff served upon Defendant a written 10-day Notice to Pay Rent or Surrender Possession (“Notice”) via FEDEX, which was sent to the Premises on June 7, 2022. Defendants remain in possession of the Premises contrary to the Lease. The current reasonable rental value of the Premises is $713.06 per day. Plaintiff initiated this lawsuit on July 5, 2022.
On July 27, 2022, Defendant filed the instant demurrer. Plaintiff opposes the demurrer.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)
Analysis
Defendants argue that the notice is invalid because 1) it omits critical information about where and to whom rent may be made by mail; 2) it demands payment to a bank outside of five miles; and 3) it is silent as to whom the check should be made payable to or the person it must be delivered to.
Code of Civil Procedure section 1161(2) provides that a tenant is guilty of unlawful detainer:
When he or she continues in possession, in person or by subtenant, without the permission of his or her landlord, or the successor in estate of his or her landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring its payment, stating the amount which is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment . ..
Thus, the basic elements of unlawful detainer for nonpayment of rent are “(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.” (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16.) Unlawful detainer actions require strict compliance with statutory requirements in order for the landlord to be entitled to such summary procedure. (Culver Center Partners East No. 1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744, 749.) “In commercial leases the landlord and commercial tenant may lawfully agree to notice procedures that differ from those provided in the statutory provisions governing unlawful detainer.” (Id., at 750.) “Thus, if the lease contains service requirements for the notice to quit at variance with the requirements in the unlawful detainer statutes, the lease provisions control.” (Id.)
In the demurrer, Defendant complains that the Notice only identifies “Century City Mall, LLC” as the person to whom payment shall be made. Defendant provides no authority that naming the LLC as the payee would be invalid. Generally, California law, the Civil Code of Procedure and the California Evidence Code all treat a limited liability company as a “person.” Code of Civil Procedure section 1161(2) only requires that the landlord notice the amount due, the name and address of the “person” to whom payment must be mailed, and that person’s telephone number. (See Hsieh v. Pederson (2018) 23 Cal.App.5th.Supp. 1, 6 [payment by mail was not precluded where notice contained landlord’s street address].) Defendant was only required to mail a payment payable to “Century City Mall LLC,” 7950 Collection Center Drive, Chicago, IL 60693 as described in the Notice. Notably, the lease requires payments to the following person and address: “Payee: Century City Mall, LLC Address: c/o Bank of America, 7950 Collection Center Drive, Chicago, IL 60693[.]” (Compl., Ex. 1.) The attached notice provides information consistent with this requirement, including the necessary name, c/o, address, and telephone number. (Compl., Ex. 2.) Therefore, the notice appears valid on its face.
Defendant also asserts that the address in Chicago is more than 5-miles from the premises, and therefore invalid. However, the five miles limit only applies where the Notice demands payment to be made to the account number of a financial institution. This is facially not the case with respect to this Notice.
Accordingly, the demurrer is OVERRULED. Defendant to file an answer within 5 days.