Judge: Maurice A. Leiter, Case: 23STCV13108, Date: 2023-10-10 Tentative Ruling

Case Number: 23STCV13108    Hearing Date: October 10, 2023    Dept: 54

Hearing Date: October 10, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint

Moving Party: Defendant KBS Holdco, LLC

Responding Party: None

T/R:      DEFENDANT’S DEMURRER IS SUSTAINED WITH LEAVE TO AMEND.

PLAINTIFFS TO FILE AND SERVE A FIRST AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. DEFENDANT TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers. No opposition has been received.

BACKGROUND

On June 6, 2023, Plaintiffs American Outdoor Advertising LLC and Riddle Legacy LLC filed a commercial unlawful detainer complaint against Defendant KBS Holdco, LLC.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Defendant demurs to the complaint on the ground that Plaintiffs failed to provide legally adequate notice of the 3-day Notice to Pay Rent or Quit. Defendant asserts the notice itself and the method of service of the notice are defective. The Court of Appeal has discussed adequate service of notice as follows:

According to the statutes governing unlawful detainer proceedings, “ ‘a tenant is entitled to a three-day notice to pay rent or quit which may be enforced by summary legal proceedings (Code Civ. Proc., § 1161) but this notice is valid and enforceable only if the lessor strictly complies with the specifically described notice conditions. (Code Civ. Proc., § 1162.)’ ” (Kwok v. Bergren, supra, 130 Cal.App.3d at p. 600, 181 Cal.Rptr. 795, quoting Lamey v. Masciotra (1969) 273 Cal.App.2d 709, 713, 78 Cal.Rptr. 344.) Stated another way, “[p]roper service on the lessee of a valid three-day notice to pay rent or quit is an essential prerequisite to a judgment declaring a lessor's right to possession under section 1161, subdivision 2. [Citations.]” (Liebovich, supra, 56 Cal.App.4th at p. 513, 65 Cal.Rptr.2d 457.) “A lessor must allege and prove proper service of the requisite notice. [Citations.] Absent evidence the requisite notice was properly served pursuant to section 1162, no judgment for possession can be obtained. [Citations.]” (Ibid.)

(Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425.)

CCP § 1162(b) provides,

(b) The notices required by Section 1161 may be served upon a commercial tenant by any of the following methods:

(1) By delivering a copy to the tenant personally.

(2) If he or she is absent from the commercial rental property, by leaving a copy with some person of suitable age and discretion at the property, and sending a copy through the mail addressed to the tenant at the address where the property is situated.

(3) If, at the time of attempted service, a person of suitable age or discretion is not found at the rental property through the exercise of reasonable diligence, then by affixing a copy in a conspicuous place on the property, and also sending a copy through the mail addressed to the tenant at the address where the property is situated. Service upon a subtenant may be made in the same manner.

                Plaintiffs allege “Plaintiff served its ‘3-Day Notice to Pay or Quit; 3-Day Notice to Cure or Quit; Real Property Commonly Known as 1320 South Santa Fe Ave., Los Angeles, CA 90021 (APN 5168-031-024)’ on both KBS and Regency via certified first class mail to the notice addresses indicated in the Sublease, as well as personal service via courtesy copies delivered to KBS’ known most-recent current business address and counsel.” (Compl. 16.) Mail service is not permitted under CCP § 1162(b); also, it is unclear whether “personal service” on Defendants’ most recent business address was completed correctly. Plaintiffs have failed to allege proper service of notice.

Defendant’s demurrer is SUSTAINED with leave to amend.