Judge: Mark E. Windham, Case: 22STLC04190, Date: 2023-01-09 Tentative Ruling

Case Number: 22STLC04190    Hearing Date: January 9, 2023    Dept: 26

Judgment Recovery Assistance, LLC v. Davis, et al.


DEMURRER
[reserved as Motion to Dismiss]

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Darrin Davis’ Motion to Dismiss/Demurrer is OVERRULED.

DEFENDANT IS TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff Judgment Recovery Assistance, LLC (“Plaintiff”) filed the instant action for recovery of back rent against Defendant Darrin Davis (“Defendant”) on June 22, 2022. Defendant filed the instant Motion to Dismiss on September 9, 2022. Plaintiff filed an opposition on December 20, 2022.

Discussion

Defendant brings the instant Motion to Dismiss pursuant to Federal Rules of Civil Procedure, Rule 41(b), which is inapplicable in this state law action. (Fed. Rules Civ. Proc., rule 1.) It appears that Defendant is attempting to demur to the Complaint, which must be brought pursuant to Code of Civil Procedure section 430.10, et seq. A demurrer is also subject to the meet and confer requirements of Code of Civil Procedure section 430.41, which states as follows:

Before 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. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.

(Code Civ. Proc., § 430.41, subd. (a).) The moving party is required to file a declaration demonstrating the meet and confer effort with the Demurrer. (Code Civ. Proc., § 430.41, subd. (a)(3).) Defendant is admonished to follow the requirements of Code of Civil Procedure section 430.41 in future.

The Motion is brought based on the relevant statute of limitations, which the parties eventually agree is Code of Civil Procedure section 337.2. Under this statute, “Where a lease of real property is in writing, no action shall be brought under Section 1951.2 of the Civil Code more than four years after the breach of the lease and abandonment of the property, or more than four years after the termination of the right of the lessee to possession of the property, whichever is the earlier time.” (Code Civ. Proc., § 337.2.)

The Complaint alleges that October 13, 2017, Defendant and Plaintiff’s assignor entered into a lease agreement for 17800 E. Colima, Apartment No. 346, Rowland Heights, California (“the Premises”). (Compl., ¶6 and Exh. 1.) The tenancy was for one year, from October 13, 2017 to October 14, 2018. (Id. at ¶12.) Defendant allegedly breached the lease agreement on June 1, 2018 and abandoned the Premises on September 5, 2018. (Id. at ¶¶10-11.)

The statute of limitations set forth at Code of Civil Procedure section 337.2, therefore, expired on the earlier of September 5, 2018 (breach of lease and abandonment of the property) or October 14, 2018 (termination of the right of the lessee to possession of the property). Defendant incorrectly contends that the statute of limitations runs from June 1, 2018 based on the alleged date of breach, but breach of the lease agreement alone does not trigger the statute.

Conclusion

Based on the foregoing, Defendant Darrin Davis’ Motion to Dismiss/Demurrer is OVERRULED.

DEFENDANT IS TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Plaintiff to give notice.