Judge: Mark C. Kim, Case: 22LBCV00295, Date: 2022-07-28 Tentative Ruling
Case Number: 22LBCV00295 Hearing Date: July 28, 2022 Dept: S27
Plaintiff, Happy Dhoor 7, Inc.
filed this action against Defendants, Mundo and Norma Chung for unlawful
detainer in connection with Defendants’ alleged failure to pay rent on
Plaintiff’s commercial unit.
a. Legal
Standard on Demurrer
A demurrer is a pleading used to test
the legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for purpose of the ruling on
the demurrer, all facts pleaded in the complaint are assumed to be true,
however improbable they may be.
A demurrer can be used only to
challenge defects that appear on the face of the pleading under attack; or from
matters outside the pleading that are judicially noticeable. Blank v. Kirwan 39
Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], §
430.30 [as to any matter on its face or from which judicial notice may be
taken], and § 430.50(a) [can be taken to the entire complaint or any cause of
action within]. Specifically, a demurrer
may be brought per CCP § 430.10(e) if insufficient facts are stated to support
the cause of action asserted. Per CCP
§430.10(a) a demurrer may be brought where the court has no jurisdiction of the
subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be
sustained only where the complaint is so bad that the defendant cannot
reasonably respond. CCP §
430.10(f).
However, in construing the allegations,
the court is to give effect to specific factual allegations that may modify or
limit inconsistent general or conclusory allegations. Financial Corporation of
America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the facts pled in
the complaint are inconsistent with facts which are incorporated by reference
from exhibits attached to the complaint, the facts in the incorporated exhibits
control. Further, irrespective of the name or label given to a cause of action
by the plaintiff, a general demurrer must be overruled if the facts as pled in
the body of the complaint state some valid claim for relief. Special demurrers
are not allowed in limited jurisdiction courts. (CCP § 92(c).)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. Goodman v.
Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show
the Court that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41
requires that “[b]efore filing a demurrer pursuant to this chapter, the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer
at least five days before the date the responsive pleading is due. (CCP §
430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration
detailing their meet and confer efforts. (CCP § 430.41(a)(3).)
b. Meet
and Confer
Defendants did not submit a meet
and confer declaration with their demurrer. In light of the fast track nature of this UD
case, the Court will rule on the demurrer on its merits. Defense Counsel must meet and confer in good
faith in the future in connection with this and other actions.
c. Standing
to Bring Suit
Defendants’ first argument on
demurrer is that Plaintiff has not adequately alleged it has standing to bring
this suit. Specifically, Defendants
point out the fact that the lease agreement, attached to the complaint, bears the
name of Kazuki and Teresa Mutsuyama as the “landlord.” Plaintiff, at ¶4 of the complaint, alleges it
is the “landlord” in connection with the subject lease. At ¶6(b), Plaintiff alleges Defendants
entered into a lease agreement with Plaintiff’s predecessor-in-interest. At the pleading stage, this is sufficient to state
a cause of action. Defendants are free
to challenge the sufficiency of the assignment at trial if they choose to do
so.
d. Proof
of Service
Defendants’ second argument is that
the proof of service attached as Exhibit 3 to the complaint is “gibberish” and
therefore cannot support a claim. At
¶10(d), Plaintiff alleges it has attached a copy of the proof of service of the
notice to pay rent or quit as Exhibit 3 to the complaint. Plaintiff, in opposition to the demurrer,
argues, “The complaint and proof of service clearly state the underlying notice
was served.” The Court has reviewed
Exhibit 3, and there are nothing but random characters stating what was served,
when it was served, and on whom it was served.
The demurrer is sustained with
leave to amend on this ground. Plaintiff
must file a First Amended Complaint with proper proof of service within two
days. The FSC and trial dates remain as
scheduled.
Defendants are ordered to give
notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. If a party submits on
the tentative, the party’s email must include the case number and must identify
the party submitting on the tentative.