Judge: Mark C. Kim, Case: 22LBCV00340, Date: 2022-08-25 Tentative Ruling

Case Number: 22LBCV00340    Hearing Date: August 25, 2022    Dept: S27

1.     Facts As Alleged in Plaintiff’s Complaint

This is an action for unlawful detainer. Defendant rents two suites in a commercial property plaintiff owns, located at 200 Pine Avenue, Long Beach, CA 90802. (Compl. ¶¶ 5-7.) Defendant rented Suite 515 on the premises beginning April 13, 2020. (Id. ¶ 6.) On September 23, it expanded into Suite 522 pursuant to a “written ‘First Amendment to Office Lease[.]’” (Id. ¶ 7.) Both agreements expire on August 31, 2025. (Id. ¶ 6.)

Defendant pays $3,214.68 and $4,310.02 in monthly rent for suites 515 and 522, respectively. (Compl. ¶ 9.) As of June 20, 2022, plaintiff alleges defendant owed $20,208.96 in unpaid rent, $752.47 in late fees, and $670.00 in attorney’s fees and costs, for a total of $21,631.43. (Id. ¶9 and Ex. 1.)

On June 28, plaintiff posted two Three Day Notices at each suite and mailed them to defendant, One Notice is titled “Three Business Day Notice to Pay or Surrender Possession of Premises,” the other “Three Business Day Notice to Pay Additional Rents or Quit.” (Compl. ¶ 10 and Exs. 2-3.) The former Notice demanded defendant pay $20,961.43, the sum of the unpaid rent and late fees. (Id., Ex. 1 at p. 2.) The latter demanded defendant pay $670.00 in attorney’s fees, ostensibly related to this eviction effort or another. (Id., Ex. 1 at p. 5.)

Plaintiff filed the complaint in the instant action on July 13, 2022, alleging defendant failed to comply with the Notices within three business days as required to avoid eviction. (Compl. ¶ 11.) Defendants demurred to plaintiff’s complaint on July 26, and plaintiff filed a timely opposition.

2.     Demurrer to Plaintiff’s Complaint

a.     Legal Standard

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (Cal. Code Civ. Proc. § 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209, 220.) The grounds for the demurrer must appear on the face of the pleading or from judicially noticeable matters. (Cal. Code. Civ. Proc. § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

The court “may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law.” (Young v. Gannon (2002) 97 Cal.App.4th 209, 220, citing Moore v. Conliffe (1994) 7 Cal.4th 634, 638; Montclair Parkowners’ Association v. City of Monclair (1999) 76 Cal.App.4th 784, 790.) For the purposes of demurrer, the court treats all facts alleged in the complaint as true. (Picton v. Anderson Union High School District (Picton) (1996) 50 Cal.App.4th 726, 732.)

When considering demurrers, courts “are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton, supra, at p. 733, citing Rogoff v. Grabowski (1988) 200 Cal.App.3d 624, 628.) As long as a party shows there is “a reasonable possibility any defect identified by the defendant can be cured by amendment,” the trial court should grant leave to amend the pleadings when sustaining a demurrer. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)  However, “[t]he burden is on the plaintiff to demonstrate the manner in which the complaint can be amended. (Ross v. Creel Printing & Publishing Company (2002) 100 Cal.App.4th 736, 748.)

b.     Request for Judicial Notice

Defendant requests the Court take judicial notice of the complaint plaintiff filed in a prior unlawful detainer case between the same parties, numbered 22LBUD00708 in the Los Angele Superior Court. Defendant bases its request on California Evidence Code section 452, subdivisions (d) and (h). (RJN 2:8-17.) Defendant further asserts that “the Court may take judicial notice of admissions, affidavits, and the like, where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court. (Id. 2:17-21, citing Del E. Webb Corp. v. Structural Materials Co. (Webb) (1981) 123 Cal.App.3d 593, 604-605.)

The Second District Court of Appeal in Garcia v. Sterling (1985) 176 Cal.App.3d 17 directly criticized Webb, the case relied upon by the defendant, as a “prime example[ ] of the widespread misunderstanding of judicial notice of court records. … “‘[A] court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file[.]’” (Garcia v. Sterling, supra, at p. 22, quoting Day v. Sharp (1957) 50 Cal.App.3d 904, 914.)

While courts may take notice of judicial records under subdivisions (d) and (h) of Evidence Code section 452, “[c]ourts may not take judicial notice of allegations in affidavits [or] declarations in court records because such matters are reasonably subject to dispute and therefore require formal proof.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) “[J]udicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Joslin v. H.A.S. Insurance Brokerage (1986) 184 Cal.App.3d 369, 375, quoting Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 113, 1134.) “[W]hile courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7, 39 Cal.Rptr.2d 658.)

Defendant is requesting the Court to accept as evidence, for their truth, mere allegations in a complaint in a separate action. Plaintiff’s prior allegations are hearsay declarations not properly subject to notice.

The Court DENIES defendant’s request for judicial notice of plaintiff’s prior unlawful detainer complaint.

c.     Requests for Attorney’s Fees as “Additional Rent”

Defendant argues “100% of the $670.00 amount claimed in plaintiff’s ‘THREE BUSINESS DAY NOTICE TO PAY ADDITIONAL RENTS OR QUIT’ … is not rent due and owing.” (Dem. 3:21-23.) Plaintiffs themselves characterize the amount claimed as attorney’s fees, rather than rent; therefore, defendant argues, “the 3-Day Notice is invalid[.]” (Id. 3:23.) Plaintiff argues “[t]his is a question of fact that can be determined from the lease, itself.” (Opp. 4:19-20.) Plaintiff also suggests the “Additional Rents” notice “can be stricken and the trier-of-fact can move forward with the remaining default notice.” Neither cites to any case law in support of its argument.

“One of the evident purposes” of section 1161 of the California Code of Civil Procedure “is to point out specifically to the tenant the amount of rent due, and to give the tenant the opportunity to pay the rent within the time allowed by statute.” (Haydell v. Silva (1962) 201 Cal.App.2d 20, 23., citing Julien v. Gossner (1951) 103 Cal.App.2d 338.) As noted by the defendant, “’[t]he statutory procedure [for unlawful detainer] must be strictly followed.’” Greene v. Municipal Court (1975) 51 Cal.App.3d 446, 450, quoting 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 506.) Thus, it is “necessary that [a] default be specifically pointed out if a forfeiture on account thereof [is] to be claimed.” (Julien v. Gossner, supra, at p. 344.)

Plaintiff misstated the nature of the charges in the heading of its Three-Day Notice to Pay Additional Rents. In doing so, plaintiff confused its two intended bases for defendant’s eviction, nonpayment of rent and breach of other lease obligations. The “purpose of [California Code of Civil Procedure section 1161] is to specifically point out breaches complained of in order that they may be remedied within the time allowed by statute.” (Julien v. Gossner (1951) 103 Cal.App.2d 338, 344.) It is incumbent upon the lessor to strictly adhere to unlawful detainer procedures. If a landlord muddies the waters himself regarding the breach of leach he asserts, he cannot then proceed on an unclear notice.

Given the plaintiff’s failure to contest defendant’s attack on the “Three Day Notice to Pay Additional Rents,” the Court will strike the portion of the complaint referring to the Notice, as suggested by the plaintiff in its opposition papers.

d.     Lease Terms Not Included

Defendant also argues that “[t]he Complaint, which does not include a copy of the Lease or First Amendment … is uncertain as to whether any particular terms are based on the First Amendment or the Lease … [and] as to how the non-base rent amounts [i.e., fees] … are calculated.” (Dem. 4:6-11.) Plaintiff replies it is not obligated to include a copy of the lease, as the action involves a non-residential property, citing Code of Civil Procedure section 1166, subdivision (d). (Opp. 4:12-14.) It also reiterates its argument that “these are questions of [f]acts which can be proved at trial.” (Opp. 5:13-14.)

Defendant specifically criticizes plaintiff for failing to attach a copy of the lease contracts or recite their terms verbatim, relying on Otworth v. Sourthern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 459 (Otworth), citing Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 59 (Wise), overruled on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510. The Otworth court, however, misread and overstated the principle in Wise; the latter court stated “one available method of pleading the contract … not … the exclusive means of pleading a contract.” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402, emphasis in original.) “A plaintiff may [also] plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.)

Here, plaintiff alleges a written lease existed between the parties requiring certain sums to paid monthly for possession of two specific spaces. Plaintiff also specifies that “by the terms and provisions of said written Lease,” various sums are due and unpaid, and details the nature of the charges. The effect of the contract is to obligate defendant to pay rent in a certain amount on a certain schedule; plaintiff has pled these effects.

The Court rejects defendant’s argument that the complaint is uncertain for failure to recite verbatim or attach a copy of the parties’ written lease.

e.     Plaintiff’s Admissions Regarding Rent Due

Defendants further argue that “Plaintiff … admitted [in a prior unlawful detainer filing against defendant] that payment was received and apparently accepted in April of 2022 towards the amount allegedly due and unpaid here[.]” (Dem. 5:8-10.)

The Court has denied defendant’s request for judicial notice of plaintiff’s prior unlawful detainer complaint. (See section 2(b), supra.) Therefore, there are no prior inconsistent allegations before the Court. The Court rejects this portion of plaintiff’s argument.

3.     Conclusion

The Court DENIES defendant’s request for judicial notice.

The Court STRIKES all plaintiff’s claims based on the “THREE DAY NOTICE TO PAY ADDITIONAL RENTS OR QUIT” (Compl., Ex. 1, p. 5.)

The Court OVERRULES defendant’s demurrer in all other respects.

Plaintiff is 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.