Judge: Mark H. Epstein, Case: 23SMCV00560, Date: 2023-04-13 Tentative Ruling

Case Number: 23SMCV00560    Hearing Date: April 13, 2023    Dept: R

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

This is a UD case.  As such, the court tends to interpret the rules regarding the complaint strictly.

Defendants demur on a number of grounds.  First, they state that the amount of past due rent is wrong.  There are two 60 day notices here, both of which are attached to the complaint.  Combined, the back rent is $31,250 but the amount in the complaint is $41,250.  Plaintiff explains that the extra $10,000 is holdover rent.  However, the complaint does not so state.  Holdover damages are not really contractual rent; it is a form of damages.  While it is generally calculated according to the lease amount, the theory underlying it is not that it is back rent due under the contract; rather it is damages due because the defendant failed to vacate the premises after failing to cure the default as required by the notice.  Defendants are correct that this ought to be stated properly.

The second ground is that plaintiff has not alleged a basis to collect any sum from defendant Stewart.  Defendant Sherman is the tenant, so the basis to collect damages there is clear.  Stewart is alleged to be a subtenant.  But that means that Stewart has no direct contractual relationship with plaintiff; Stewart’s contract is with Sherman (one would presume).  True enough, for purposes of obtaining possession, Stewart’s rights will stand or fall with Sherman’s.  That is, if Sherman is evicted, so is Stewart.  But the right to possession is different than the right to collect back rent or money.

The third argument is a defective proof of service relating to the complaint.  That argument is rejected.  Defendants waived issues regarding service of the complaint when they made a general appearance.  If they wanted to challenge service of the complaint, they needed to do so by way of a motion to quash.

In reply, defendants contend for the first time that one of the 60-day notices was improper because it did not include the language regarding COVID required by the Legislature.  However, that argument cannot be made for the first time on reply and therefore has been waived (at least as a ground for demurrer; it is not waived for purposes of the merits).

Because the first two grounds have merit, the demurrer is SUSTAINED.  Because the problems are easily cured, LEAVE TO AMEND IS GRANTED. 

Plaintiff has 5 days to file an amended complaint.  Defendants have the time allowed by law to answer or otherwise respond thereto to the extent that the amendment discloses a new ground to demur.