Judge: Mark A. Young, Case: 24SMCV00919, Date: 2024-09-04 Tentative Ruling
Case Number: 24SMCV00919 Hearing Date: September 4, 2024 Dept: M
CASE NAME: TH Community, LLC, v. Romero,
et al.
CASE NO.: 24SMCV00919
MOTION: Demurrer and Motion to Strike
HEARING DATE: 9/4/2024
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.)
A special demurrer for uncertainty is
disfavored and will only be sustained where the pleading is so bad that
defendant cannot reasonably respond—i.e., cannot reasonably determine what
issues must be admitted or denied, or what counts or claims are directed
against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat
vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
Code of Civil Procedure (CCP) section
430.10(d) allows a special demurrer where there is
a defect or misjoinder of parties. This refers to either an absent necessary or
indispensable third party, or that plaintiffs lack sufficient unity of interest
(CCP § 378) or that there is no common question of law or fact as to the
defendants (CCP § 379). A demurrer on ground of misjoinder does¿not lie to challenge
allegations that plaintiff is uncertain which defendant caused his or her
injuries. (Landau v. Salam (1971) 4 Cal.3d 901, 908.)
Any party, within the time allowed to
respond to a pleading may serve and file a notice of motion to strike the whole
or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).)
The court may, upon a motion or at any time in its discretion and upon terms it
deems proper: (1) strike out any irrelevant, false, or improper matter inserted
in any pleading; or (2) strike out all or any part of any pleading not drawn or
filed in conformity with the laws of California, a court rule, or an order of
the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767,
782 [“Matter in a pleading which is not essential to the claim is surplusage;
probative facts are surplusage and may be stricken out or disregarded”].)
“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.)
REQUEST FOR JUDICIAL NOTICE
Defendants request that the Court take judicial notice of the
following documents:
1) Exhibit A - City of Beverly Hills Rent Stabilization
Directive;
2)
Exhibit B - CA Secretary of State LLC Entity information for T.H. Community
LLC;
3) Exhibit C - Case No. 23SMCV03057 Dismissal Minute Order;
4) Exhibit D - City of Beverly Hills Ordinance 20-O-2818
Effective September 2, 2020 and City of Beverly Hills Notice of May 20, 2022;
6) Exhibit E - Complaint Plaintiff filed in eviction Case No.
23SMCV03057;
7) Exhibit F - Complaint, LASC Case No. 23SMCV02960; and
8) Exhibit G - Court Calendar and Calculation of Weekdays of
February 2024.
The
City of Beverly Hills ordinances are subject to notice as regulations or
legislative enactments. (Evid. Code § 452(b).) They are subject to judicial
notice as "official acts” and records maintained by the City and are not
subject to reasonable dispute. (Evid. Code § 452(c). (h).) The court records
are noticeable. (Evid. Code § 452(d).) The Court Calendar and Calculation of
Weekdays are subject to notice as facts and propositions of common
knowledge that are not subject to dispute. (Evid. Code § 452(g).) Accordingly,
the requests are GRANTED.
ANALYSIS
Defendants Joshua Romero and Jennifer Romero demur to the sole
cause of action for unlawful detainer. Defendants move to strike: 1) the attached
3-day notice; 2) Jennifer Romero as a named Defendant; and 3) the entirety of
the complaint.
Standing
Defendants first argue that Plaintiff lacks standing to bring
this action, because it is suspended. However, as of at least August 22, 2024,
Plaintiff is in good standing with the Secretary of State. Thus, the Court may
not sustain the demurrer or strike the complaint for lack of standing.
Tenant Protection Act
Defendants also argue that the complaint improperly alleges that
the complaint is not subject to the Tenant Protection Act. However, Defendants
do not show how the unlawful detainer cause of action would fail for this
reason. Defendants note facts which demonstrate that the action may proceed
under the Tenant Protection Act. A “just cause” eviction includes the failure
to pay rent. (Civ. Code § 1946.2(a), (b)(1)(A).) The complaint alleges Defendants’
failure to pay rent as the default. Thus, the complaint would still be
well-stated under the Tenant Protection Act.
Rent Owed
Defendants next argue that the complaint fails to state a claim
for unlawful detainer because Plaintiff failed to comply with the rent control
and eviction moratorium ordinances, that the “only basis for eviction in this
matter is unpaid rents,” and that the complaint omitted certain material facts
concerning the amount of rent owed. Defendants contend that the complaint “omitted”
the notice of rent increase to the complaint, which would reveal that Plaintiff
actually increased rent on January 25, 2021, and not in 2023. Defendant
reasons that this was in violation of Section 4 of the City of Beverly Hills
Ordinance No. 20-O-2818, which prohibited any rent increase from March 15, 2020,
to May 31, 2022. (RJN, Ex. D.) Defendants note that the stated rent amount in
the 3-day notice would also be defective for this reason. Defendants ask the
Court to look beyond the pleadings to conclude that Plaintiff has perjured
itself by falsely alleging that the rents sought herein are for rents due from
2023, and truthfully alleging that the rents are from 2021.
Defendants merely contradict the pleadings with extrinsic
evidence, which is not a proper basis for demurrer.
3-Day Notice
Defendants argue that the 3-day notice also fails because it
does not include the fact that that “Saturdays, Sundays, and judicial holidays”
are excluded. Defendants contend that the complaint improperly calculated the
notice period as ending on February 25, 2024. Defendants explain that the
notice was posted on February 22, 2024, which was a Thursday. February 25, 2024,
was a Sunday. Thus, the true expiration would have been on February 27, 2023.
Of course, the Notice attached to the complaint does not state that the
3-day period would expire on February 25, 2024. It is undisputed that the
complaint was not filed until after expiration of the three days on February
27, 2024, properly excluding Saturdays and Sundays. Defendants posit no
authority that the notice has to include the fact that weekends and judicial
holidays are excluded in the computation of the three-day period. The
statute does not expressly require that the notice state that Saturdays,
Sundays, and judicial holidays are excluded from the three-day time computation. Section 1161(2) provides in pertinent part that a tenant is guilty
of unlawful detainer:
“When the tenant continues in possession ... without the
permission of his or her landlord ... 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
(provided that, if the address does not allow for personal delivery, then it
shall be conclusively presumed that upon the mailing of any rent or notice to
the owner by the tenant to the name and address provided, the notice or rent is
deemed received by the owner on the date posted, if the tenant can show proof
of mailing to the name and address provided by the owner), or the number of an
account in a financial institution into which the rental payment may be made,
and the name and street address of the institution (provided that the
institution is located within five miles of the rental property), or if an
electronic funds transfer procedure has been previously established, that
payment may be made pursuant to that procedure, or possession of the property,
shall have been served upon him or her and if there is a subtenant in actual
occupation of the premises, also upon the subtenant.”
Strictly construing the statute, the Court concludes that section
1161(2) would not require a landlord to notice the specific expiration
of the three-day period, or the fact that the three-day period excluded
judicial holidays. The statute operates to make a tenant guilty of unlawful
detainer upon the expiration of the three-day period (excluding holidays)
following the written notice. The statute only requires written notice “stating”
the amount due, and certain information of the person to whom the rent shall be
made. There is no mention that the written notice must also include that “Saturdays,
Sundays, and judicial holidays” are excluded, or that the period expires on a
particular day. Thus, the attached three-day notice complied with section 1161.
Misjoinder of Parties
Jennifer Romero argues that she is improperly joined in this
matter. Joshua Romero explains, via extrinsic evidence, that he is Jennifer Romero’s
son and that she does not reside at the Premises. Defendants also argue that Jennifer Romero is
not on the Lease. However, she is on the lease as a guarantor of rent. She
guaranteed “unconditionally to Landlord and Landlord's agents, successors and
assigns, the prompt payment of Rent or other sums that become due pursuant to
this Agreement, including any and all court costs and attorney fees included in
enforcing the Agreement… [and] waive any right to require Landlord and/or
Landlord's agents to proceed against Tenant for any default occurring under
this.” (Lease, ¶50.) Thus, she is properly named as a
defendant.
Abatement
Defendants argue that there is another action pending between
the same parties on the same cause of action. A
plea in abatement may be made by demurrer or answer when there is another
action pending between the same parties on the same cause of action. (Plant
Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789.)
The later-filed suit is “abated” (stayed) pending resolution of the earlier
action which, if concluded on the merits will be res judicata and if not, the
later action will proceed. (Ibid.) The court can take judicial
notice of the court files in determining the basis for this ground. (Bistawros
v. Greenberg (1987) 189 Cal.App.3d 189, 191-192.)
“In order to sustain
the plea of another action pending it is essential that it shall appear: (1)
That both suits are predicated upon the same cause of action; (2) that both
suits are pending in the same jurisdiction; and (3) that both suits are
contested by the same parties. [Citation.] Where the plea is sustained the
order should be merely an abatement or continuance of the second action, and it
is error to give judgment for the defendant on the merits. [Citation.] In the
instant action, assuming arguendo that it is subject to abatement, it is clear
that the trial court erred insofar as it purported to render a judgment of
dismissal on the ground that another action was pending. The only relief to
which a litigant is entitled upon the plea, whether by demurrer or answer, is
that the second action abate.” (Colvig v. RKO General, Inc. (1965) 232
Cal.App.2d 56, 70-71.)
Defendants cite LASC Case No. 23SMCV02960 filed by Defendant
Joshua Romero for breach of contract, breach of the covenant of the implied
warranty of habitability, negligent maintenance of premises, maintenance of
nuisance, intentional infliction of emotional distress, and breach of the
covenant of good faith and fair dealing. The action generally regards the
Premises and may have some overlapping issues of fact. For example, the facts
underlying Joshua Romero’s allegations may form the basis for Defendants’ affirmative
defenses in this matter. However, Defendants do not show that the suits are
predicated upon the same cause of action. The instant case is for unlawful
detainer. Joshua Romero’s action is not predicated on his alleged unlawful
detainer for failure to pay rent. Therefore, a plea in abatement is
inappropriate here.
Conclusion
Accordingly, the demurrer is OVERRULED. The motion to strike rehashes
the same arguments discussed above. Therefore, for the same reasons discussed
above, the motion to strike is DENIED.
Defendants to file an answer within 5 days.