Judge: Mark H. Epstein, Case: 23SMCV00838, Date: 2023-05-16 Tentative Ruling

Case Number: 23SMCV00838    Hearing Date: May 16, 2023    Dept: R

The court believes that the demurrer may be moot.  The court had been informed that defendant planned to leave by the end of April.  If so, then the court is inclined to note that possession is no longer at issue.  Because the demurrer focused on eviction, it really is moot. 

If the matter is not moot, the court is inclined to OVERRULE THE DEMURRER.  This is a speaking demurrer; it relies on facts outside of the pleadings.  While those facts might well be true and they might well provide defendant a defense, they cannot be considered now.

Defendant also challenges service of the three day notice.  The proof of service appears proper on its face, so the demurrer on that ground is overruled.  Defendant also contends that the 3 day notice includes late fees.  However, the notice does not include those fees.  The notice is for the base rent and nothing more.  (To the extent there is a challenge to service of the complaint, such a challenge must be raised by a motion to quash, not by a demurrer.  Because no motion to quash has been made and defendant has made a general appearance, any such argument is not properly before the court.)

If the matter is not moot, defendant has 5 days to answer.  If the demurrer is moot, defendant has 30 days to answer or otherwise respond.