Judge: Mark C. Kim, Case: 22LBCV00404, Date: 2023-02-16 Tentative Ruling

Case Number: 22LBCV00404    Hearing Date: February 16, 2023    Dept: S27

1.     Background Facts

Plaintiff, Richard Peterson filed this action against Defendants, Marie-Baptiste Gremaud and Stephen Hercy for unlawful detainer, alleging he served Defendants with a three-day notice to pay rent or quit, but they have failed to pay past-due rent in the amount of $24,315, plus accruing monthly rent, such that eviction is appropriate.    

2.     Demurrer

a.     Parties’ Positions

Defendants demur to the complaint, contending the Court has no jurisdiction over the matter because there is another UD case pending between the parties. 

Plaintiff opposes the demurrer, contending he dismissed the prior UD such that the instant case is the only pending case between the parties. 

b.     Request for Judicial Notice

Defendants seek judicial notice of the UD complaint filed by Plaintiff against Defendants, case number 22LBUD01437.  The RJN is unopposed and granted. 

c.     Analysis

Defendants rely on Woods-Drury, Inc. v. Superior Court (1936) 18 Cal.App.2d 340 to support their position that a second UD proceeding cannot go forward while another action remains pending between the parties for UD.  The case holds that a subsequent UD case can only be filed after the first UD case is dismissed. 

Plaintiff, in opposition to the demurrer, shows that he dismissed the first UD case on 9/30/22, approximately 45 days after he filed this action and one month after Defendants filed this demurrer. 

The issue, therefore, is whether dismissing the first case while this action is already pending is sufficient, or whether Plaintiff was required to dismiss the first case prior to filing this action.  Woods-Drury does not speak to the issue, as the trial court in Woods-Drury allowed three concurrently-pending UD actions all to proceed to trial and findings of fact.  In this case, Plaintiff has dismissed the previously pending UD action.  The Court reviewed the file from the prior action, and finds Plaintiff filed the complaint, Defendants moved to quash service of the summons and complaint, the Court granted the motion and ordered Plaintiff to re-serve the summons and complaint, and then Plaintiff dismissed the action.  There were no substantive rulings, and therefore nothing about the prior action tends to preclude this one from going forward on its merits. 

The demurrer is overruled.  Defendants are ordered to file an answer within five days.  CCP §1167.3, CRC 3.1320(g).

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. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.