Judge: Mark A. Young, Case: 23SMCV04384, Date: 2024-04-03 Tentative Ruling

Case Number: 23SMCV04384    Hearing Date: April 3, 2024    Dept: M

CASE NAME:           PR SM Livorno LLC v. Marquez, et al.

CASE NO.:                23SMCV04384

MOTION:                  Demurrer to the Complaint

HEARING DATE:   4/3/2024

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

Defendant Ricardo Marquez demurs to Plaintiff PR SM Livorno LLC’s unlawful detainer complaint. Defendant argues that the notice to pay rent or quit overstates the rent due and is therefore ineffective to support an unlawful detainer. However, Defendant is in pro per and did not sign any of the demurrer papers. More importantly, Defendant also did not fill out the proof of service of the demurrer. Accordingly, the demurrer is OVERRULED.

Defendant to file an answer within 5 days.